61866115 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Civil Action No. 11-CV-02285-NYW

CENTER FOR LEGAL ADVOCACY, d/b/a 

DISABILITY LAW COLORADO,

Plaintiff,

v. 

REGGIE BICHA, 

in his official capacity as Executive Director 

of the Colorado Department of Human Services, and 

JILL MARSHALL, in her official capacity 

as Chief Executive Officer of the Colorado Mental Health 

Institute at Pueblo, 

Defendants.

PLAINTIFF’S COMBINED RESPONSE IN OPPOSITION TO 

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND REPLY 

IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY 

JUDGMENT TO ENFORCE SETTLEMENT AGREEMENT 

As of July 31, 2018, 281 individuals with mental illness were suffering in our Colorado 

jails because Defendants, the persons statutorily responsible for their care and treatment, have 

abandoned them. At all times since December 2017, the State has had a list of at least 100 people 

waiting for inpatient restoration services at CMHIP1 or at RISE who have waited in jails longer 

than the agreed-upon 28-day maximum. Every person on the wait list since December 23, 2017 

(which DLC estimates is close to 1,000 people) is a breach of the parties’ Settlement Agreement. 

1

 Plaintiff uses the same shortened names here as it did in its opening brief. 

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Defendants violated the constitutional rights of every one of these detainees by their failure to 

timely admit and treat them. 

This is not an abstract issue. The first person alphabetically on the July 2018 wait list, 

B.A., waited 133 days to be admitted to CMHIP for treatment to restore him to competency. Ex. 

9 (the State’s August 2018 report) at 2. His “Ready for Admission” date was February 22, 2018. 

He should have been transported to CMHIP by March 22, 2018. He was admitted on July 6, 

2018—105 days longer than the 28 days the State agreed upon. 

Another detainee, A.B., has been Ready for Admission since April 23, 2018. Id. at 6. He 

has been charged with four misdemeanors. He should have been admitted for inpatient restoration 

treatment by May 21, 2018. As of the end of July, after 98 days, he was still locked in jail waiting 

to be admitted to CMHIP. 

Another detainee, R.B., has been Ready for Admission since April 16, 2018. Id. at 7. He 

has been charged with two misdemeanors (Resisting Arrest and Obstructing a Peace Officer) and 

two public order violations (Consuming Alcohol in Public and Disorderly Conduct/Offensive 

Gesture), and was found incompetent to stand trial. He should have been admitted to CMHIP for 

treatment to restore him to competency by May 14, 2018. As of the end of July, after 105 days, 

he was still languishing in jail waiting for Defendants to help him. R.B. cannot stand trial for his 

charges, his right to a speedy trial is tolled, and he cannot bond out. Instead, the Defendants keep 

him locked up in a jail cell, while he desperately needs treatment to be able to comprehend the low 

level criminal charges against him and then reasonably consult with his lawyer. 

The final detainee on the list, A.Z., has been Ready for Admission since April 16, 2018. 

Id. at 68. He is charged with a single count of assault on a peace officer with bodily fluids for 

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spitting on a police officer and has been found incompetent to stand trial. Like R.B., he should 

have been admitted to CMHIP for treatment to restore him to competency by May 14, 2018 but 

remains, 105 days later as of the end of July, waiting in jail. 

As of the end of July 2018, there were almost 300 other individuals on the wait list, all with 

their own tragic stories and many with families anxiously wondering why their child or spouse or 

parent is stuck behind bars in legal limbo. 

In its motion for summary judgment, the State did not mention or address the plight of 

these human beings. It claims Plaintiff is “cloud[ing] the legal issue before this Court by 

introducing extraneous facts detailing compelling circumstances some individuals face while 

incarcerated before trial.” Dkt. 97 at 2. To the contrary, the wait times faced by perhaps 1,000 

Coloradans suffering in jails is the precise legal issue before this Court and establishes Defendants’ 

numerous breaches of the Settlement Agreement. After patting itself on the back that it can 

conduct timely outpatient evaluations and supplying the Court with 1,000 pages of meaningless 

records on that point, the State devotes two sentences buried on page 8 to admit that it is out of 

compliance as to inpatient restorative treatment but that “it continues to work creatively and 

expeditiously to tackle the challenge of achieving and maintaining compliance with the inpatient 

restoration services timeframes.” Dkt. 97 at 8. 

A five-year period (2015 to 2019) when the State will be more often out of compliance 

than in compliance does not demonstrate a creative or expeditious effort. It reflects a failure to 

follow the Constitution and a colossal breach of the Settlement Agreement. 

This case is simple. The State breached the Settlement Agreement in December 2017 by 

claiming it could re-invoke DSC for the same reason it did six months before and because its stated 

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reason (an unanticipated spike, when the numbers decreased in fiscal year 2017-18) was baseless. 

The State continued to be in breach in June 2018 by not returning to compliance (and not invoking 

DSC for an improper third straight time) and the State remains in breach today. There is nothing 

to support Defendants’ request for summary judgment in light of these undisputed facts. DLC 

asks this Court for the basic remedies of finding breach, ordering Defendants to comply with the 

parties’ agreement, and awarding DLC its fees. 

The State argues that the Settlement Agreement, a contract, contains an exclusive remedy 

that allows the State to never come back into compliance. According to the State, it may repeatedly 

invoke DSC and all this Court can do is add one month to the end of the endless agreement for 

every month invoked. Alternatively, the State can elect not to invoke DSC at all and all this Court 

can do is add three months to the end of an endless agreement. The State argues that DLC and this 

Court have no authority to enforce compliance with the terms of the Settlement Agreement, leaving 

the Plaintiff and this Court to simply express concern that thousands of Coloradans are suffering 

for months and months in jail without any ability to hold the State accountable. 

That cannot be right. The detainees have not yet pled to a charge, and cannot because they 

are impaired by their mental illness. They are simply awaiting treatment to restore them to a place 

of comprehension about where they are and why they are there. The State’s position that it can 

hold these detainees indefinitely, without consequence, because it is working on it, is unacceptable 

and offensive. This violates the Settlement Agreement. This violates the United States 

Constitution. This violates standards of human decency. 

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Response to Defendants’ Statement of Undisputed Facts 

Though many of the facts are irrelevant to the issues before this Court, DLC does not 

dispute Defendants’ Statements of Undisputed Facts, except to note that DLC has challenged 

whether the Department’s December 2017 invocation was proper (paragraph 23). 

ARGUMENT 

I. Defendants—not Plaintiff—are violating the 2016 Settlement Agreement. 

A. Defendants have not met the deadlines for more than a year. 

The wait list statistics are damning. Every pretrial detainee should be admitted for 

restoration within 28 days and the average should be 24 days. Instead, this has been the reality 

since June 2017:

Month 

Entries for 

Detainees on 

Wait List, 28+ 

Days 

Average 

Wait Time 

Longest Wait 

Time 

June 2017 3 23.93 29 

July 2017 36 28.12 45 

August 2017 87 37.35 56 

September 2017 104 47.26 68 

October 2017 120 58.17 88 

November 2017 145 66.46 87 

December 2017 170 67.14 129 

January 2018 177 72.84 129 

February 2018 194 74.51 114 

March 2018 221 90.24 133 

April 2018 214 87.34 136 

May 2018 217 96.56 144 

June 2018 211 95.53 144 

July 2018 281 80.62 149 

The State in its opening brief does not address these failures but does not refute these facts. 

Nor could it because these figures are derived from their own monthly reports. Instead, the State 

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congratulates itself for complying with the timeframes for outpatient evaluations, and submits a 

staggering 28 exhibits totaling 1,000 pages of irrelevant material to support this undisputed 

proposition, which is not the subject of DLC’s motion to reopen or of the State’s prior invocations 

of DSC. Dkt. 97 at 5, Dkt. 97-1 through -28. The State then crows about its inpatient evaluations 

now being in compliance, when DLC again has not reopened this case because of inpatient 

evaluations. Dkt. 97 at 8. 

The State said very little and did not attach the over 1,000 pages of monthly records which 

would show 14 straight months of increasing constitutional violations of detainees waiting months 

(and now approaching a half a year) for inpatient restorations.2 That was the basis for the State 

invoking DLC in June and December 2017. That was the basis of this reopened action. That is 

what is at issue here. 

The State’s other misdirected arguments fail. The State tries to blame everyone else in the 

criminal justice system for its failures, claiming “the Department’s role is specific and it is allowed 

very little discretion.” Dkt. 97 at 3. The Department has full powers and responsibilities over the 

detainees in its custody—the inpatient evaluations and restorations. C.R.S. § 16-8.5-111(2)(b). 

The General Assembly also required the Department beginning on July 1, 2018, to, among other 

things, enact a program to oversee outpatient restorations and maintain an adequate pool of 

outpatient competency restoration providers. C.R.S. § 27-60-105(4). This would help lessen the 

2

 DLC will submit at the hearing all of the State’s monthly reports since July 2017 as to inpatient 

restorations documenting the wait list but, in the interest of efficiency, does not attach them here. 

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demand for inpatient restorations and reduce the wait list. To date, the State has not complied with 

this statutory mandate. 

The State boldly asserts that the essential purpose of the Agreement is still being fulfilled 

because the Settlement Agreement’s timelines (that the State has not met in more than a year) 

represent some extra favor that the State has bestowed upon these detainees as timelines “are 

otherwise absent in state or federal law in this jurisdiction.” Dkt. 97 at 4. This is false for two 

reasons. 

First, “[c]ontracts cannot simply be abrogated or ignored, and must be given effect in light 

of their essential purpose and effect.” Bennett Bear Creek Farm Water & San. Dist. v. City & 

Cnty. of Denver, 928 P.2d 1254, 1266 (Colo. 1996). The essential purpose of the Settlement 

Agreement is to ensure timely evaluation and restorative treatment of pretrial detainees. The State 

is failing to satisfy the timeframes established by the agreement as to inpatient restorations and 

thus is failing to fulfill the agreement’s essential purpose. 

Second, “due process requires that the nature and duration of commitment bear some 

reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 

U.S. 715, 738 (1972). “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.” Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1121-22 (9th Cir. 2003). Here, 

Defendants clearly have violated, and are continuing to violate, the due process protections granted 

to incompetent criminal defendants awaiting admission to the state hospital for restorative 

treatment by failing to timely admit them. 

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Several courts that have addressed this precise issue—the delay in transferring an 

incompetent defendant from pretrial detention to a psychiatric hospital for restorative treatment—

have issued orders requiring admission in as short as seven days—one-quarter the length of time 

Defendants have under the current Settlement Agreement. See, e.g., Mink, 322 F.3d at 1121-22; 

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

2015), reversed as to evaluations only, not admission for treatment, by 822 F.3d 1037 (9th Cir. 

2016). In another case, a Louisiana federal court entered a preliminary injunction requiring 

admission within 21 days of the court’s order requiring commitment—a 25% shorter timeframe 

than Defendants are provided under the Settlement Agreement. See Advocacy Ctr. for the Elderly 

& Disabled v. La. Dep’t of Health & Hospitals, 731 F. Supp. 2d 603, 620, 627 (E.D. La. 2010). 

More recently, another federal district court in Washington ruled that “indefinitely 

incarcerating incompetent defendants while they awaited competency restoration, because there 

was no room in the state hospital, violated their constitutional due process rights” because an 

incompetent criminal defendant has a liberty interest to be free from incarceration and to receive 

restorative treatment. Willis v. Wash. State Dep’t of Social & Health Servs., 2017 WL 1064390, 

at *6 (W.D. Wash. Mar. 21, 2017); see also State v. Hand, 199 Wash. App. 887, 895-98 (finding 

that 61-day delay in admission for competency restoration treatment was unreasonable and 

violated substantive due process rights of detainee). 

Other courts addressing delays like those here have concluded that such delays are “far 

beyond any constitutional boundary.” Terry ex rel. Terry v. Hill, 232 F. Supp. 2d 934, 938, 944 

(E.D. Ark. 2002) (finding six-month average wait time for admission to state psychiatric hospital 

unconstitutional); Disability Law Ctr. v. Utah, 180 F. Supp. 3d 998, 1004 (D. Utah 2016) (denying 

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motion to dismiss due process claim on behalf of incompetent defendants forced to wait as long 

as six months before admission to state hospital for restorative treatment). 

In sum, other courts interpreting the same United States Constitution which is binding on 

Colorado have ordered shorter timelines than what DLC agreed to (in the spirit of compromise) 

and held that the wait times now seen here were violations of due process. 

B. The second DSC invocation in December 2017 was improper and a breach. 

Under the rules of contract interpretation, “[t]he review of the contract must strive to give 

effect to all provisions so that none is rendered meaningless.” See Summit Bank & Tr. v. Am. 

Modern Home Ins. Co., 71 F. Supp. 3d 1168, 1171 (D. Colo. 2014). The State correctly asserts 

that “[a] fundamental tenet of contract interpretation is that provisions cannot be read in isolation.” 

Dkt. 97 at 14 (citing Sanpete Water Conservancy Dist. v. Carbon Water Conservancy Dist., 226 

F.3d 1170, 1179 (10th Cir. 2000)). The State argues another basic tenet is that “[p]arties are 

presumed to have bargained for any risks that are central to the substance of the contract.” Dkt. 

97 at 15 (citing United States v. Winstar Corp., 518 U.S. 839, 905 (1996)). 

The Settlement Agreement’s section on Individual Special Circumstances includes an 

explicit provision for the Defendants to seek consecutive invocations. Dkt. 78-1 ¶ 6(b). The 

Settlement Agreement’s next section, Departmental Special Circumstances, does not include an 

explicit provision to seek consecutive invocations. See id. ¶ 6(c). 

The State bargained for the right to invoke Individual Special Circumstances consecutively 

for the same person and did not bargain for (and DLC correspondingly did not agree to) the right 

to consecutively invoke DSC. There is no interpretation that allows for consecutive invocations 

of DSC, whether reading the contract as a whole or the provisions in isolation. There would be no 

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reason for the parties to have explicitly provided for consecutive invocations for Individual Special 

Circumstances in section 6(b) if, as Defendants assert, the agreement by silence provided for that 

same right in the DSC context in the very next section 6(c). That makes no sense. 

The State’s newly conjured up right would render the entire contract, especially the length 

of the agreement, worthless. It would permit the State to leave people with mental illness in jails 

without treatment for months, even years, with the only recourse being that the now-unenforceable 

agreement would never expire.3 The State’s newly conjured up escape clause would also violate 

the State’s duty of good faith and fair dealing. 

C. Neither DSC invocation was justified under the requisite standard. 

DLC stands on the statistics it presented in its opening brief. Dkt. 96 at 9-11. The State 

claims an unanticipated spike for a foreseeable, continued level of inpatient restorations. However, 

their statistics on a monthly and annual basis demonstrate a decrease, not increase, in the demands 

on the State to provide inpatient services. Fiscal year 2017-18 saw a 22.9% decrease in the number 

of inpatient evaluations, the other source of demand for the inpatient beds at CMHIP and RISE. 

Dkt. 96 at 11. Totaling up how many detainees needed either inpatient restorations or evaluations 

show that monthly total dropped from 110 in May and June 2017 to just 82 in December 2017 

(and 80 in July 2018). Dkt. 96 at 10. 

If the State claims every month, no matter what the truth is, to have an “unanticipated 

increase,” then Defendants will never attempt to come back into compliance and will serially 

3

 DLC has also not consented to a modification of the Settlement Agreement to provide the State 

with a right to consecutively invoke DSC. Dkt. 78-1 ¶ 16. To the contrary, DSC has challenged 

the State’s invocation in December 2017 by the process provided in the Settlement Agreement. 

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invoke DSC. It would be an absurd reading of the Settlement Agreement, or any contract, to read 

into it a clause that guts the agreement’s essential purpose and allows one party to commit hundreds 

and then thousands of material breaches in perpetuity without consequence or redress. It also 

represents the State’s breach of the covenant of good faith and fair dealing through its improper 

invocation of DSC. 

D. The State is in breach since June 2018. 

The situation is even more straightforward since June 2018. The State’s improper 

December 2017 invocation (if effective at all) expired after six months on June 22, 2018. The 

State admits it is not in compliance as to inpatient restorations and it is undisputed that it has not 

re-invoked DSC for a third time. Dkt. 97 at 8. This is a breach. 

In response, the State makes two unavailing arguments. First, it claims that DLC is in 

breach of the Settlement Agreement because it has filed this motion to reopen and is pursuing 

enforcement of the agreement. Dkt. 97 at 18-19, 20-21. This is absurd. The State cannot identify 

one performance obligation of DLC under the agreement which it has failed to do. Under the 

black-letter law of Colorado and every other jurisdiction, that means DLC has substantially 

performed. Arguing for a remedy to which a party may or may not be entitled does not mean that 

party breached the agreement. It means the breach existed but another remedy is appropriate. 

Most fundamentally, the State’s argument assumes that DLC is not entitled to seek 

enforcement of the agreement because the DLC limited itself in the case of all breaches of the 

agreement to the narrow remedy of extending the agreement indefinitely into the future. This 

argument fails as a matter of law and logic. 

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The State’s argument that the contract provides for an exclusive remedy is baseless. “A 

contract which excludes some remedy given by law should be so definite and positive in its terms 

as to show the clear intention of the parties to do so.” Middleton v. Klingler, 410 N.W.2d 184, 186 

(S.D. 1987) (citing 17 C.J.S. Contracts § 36(2), 655 (1963)). “[E]ven if a contract specifies a 

remedy for breach of that contract, ‘a contractual remedy cannot be read as exclusive of all other 

remedies [if] it lacks the requisite expression of exclusivity.’” Gotham Partners, L.P. v. Hallwood 

Realty Partners, L.P., 817 A.2d 16, 1760 (Del. 2002) (citation omitted); see David v. Hitti, 480 

P.2d 581, 584 (Colo. App. 1970) (rejecting exclusive remedy theory). 

An Illinois federal court rejected a similar argument made by the government that a 

counterparty adopted an exclusive remedy, stating, “[N]othing in . . . the contract as a whole 

suggests that the parties intended to limit the Conference’s rights to the aforementioned remedies. 

If the parties wished to limit the Conference’s remedies, they could have easily included language 

to that effect. They did not. Absent such an express limitation, the Conference’s remedial rights 

must be deemed cumulative and the breach of contract claim must be allowed to proceed.” U.S. 

v. Illinois, 144 F. Supp. 2d 990, 993 (C.D. Ill. 2001). 

Here, there is no language indicating that the sole and exclusive remedy of DLC for any 

breach of the agreement is for the agreement to extend. The provision stating the three-month 

addition for months in breach is not captioned “remedies” but is in the section titled “duration of 

the agreement.” Dkt. 78-1 ¶ 4(b). It says nothing about being a remedy, let alone the sole and 

exclusive remedy—language necessary for the Court to give any consideration to the State’s 

argument. Moreover, other remedies are listed elsewhere in the agreement. For example, the 

agreement provides that DLC can challenge an invocation of DSC by coming to this Court to 

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reopen the case—a remedy which DLC has now elected to do twice. Id. ¶ 6(c); Dkts. 53 & 91 

(DLC’s motions to reopen). 

Because the State did not raise this argument in opposing reopening last time in 2015, the 

State is thus suggesting that the amended 2016 Settlement Agreement included a deliberate 

narrowing of remedies down to simply extending the agreement indefinitely. There is no support 

in the text of the amended agreement to reflect that significant change. 

The notion that DLC would have limited itself to the sole remedy of indefinitely extending 

an agreement which the State could then indefinitely breach is illogical. If true, it would make no 

sense that DLC bargained for the right to come back to this Court to challenge the State’s 

invocation of DSC and for the Court to have jurisdiction to oversee the enforcement of this 

agreement (which the State has already breached once by supplying falsified data in 2015) if the 

only available remedy was an indefinite extension to an indefinite agreement with no means of 

enforcement. 

Such an interpretation would result in an agreement which the State could choose to never 

comply with and would destroy the essential purpose of the agreement. There is no textual support 

for such an interpretation which would gut the agreement of any meaning. 

II. As a Remedy for the Breach of Contract, the Court Should Order Immediate 

Compliance Upon Pain of Contempt. 

The parties agree that the analysis of a settlement agreement is that of any other contract. 

Dkt. 97 at 14. The elements of breach of contract in Colorado are well established: (1) the parties 

entered into the contract; (2) defendant has breached the contract by failing to perform as promised; 

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and (3) plaintiff has substantially performed its duties under the contract. Colo. Jury Instr., Civil 

§ 30:10; W. Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992) (cited in Dkt. 97 at 18). 

There is no dispute there is an agreement, in the form of the Settlement Agreement filed 

with this Court. Dkt. 97 at 4, 6. DLC has performed its limited obligations under the agreement. 

See Dkt. 78-1. DLC has demonstrated breaches of the agreement in the hundreds of pretrial 

detainees who are waiting in excess of the 28-day maximum and 24-day average for inpatient 

restoration, a fact which the State does not deny. DLC has shown above why the December 2017 

re-invocation was invalid and the State admits it has not invoked at all in June 2018. Thus, no 

DSC applies since December 2017 and the State is not in compliance with the Settlement 

Agreement’s timelines and is in breach. 

One remedy for a breached settlement agreement is to request that the Court order the 

breaching party to comply with its terms. See, e.g., Feerer v. Amoco Prod. Co., 242 F.3d 1259, 

1263 (10th Cir. 2001) (affirming district court’s enforcement of settlement agreement and rejecting 

party’s incorrect interpretation of settlement agreement’s terms); Starr v. Roche, 33 F. App’x 432, 

434 (10th Cir. 2002) (affirming district court’s enforcement of settlement agreement when one 

party refused to comply); Huntwise, Inc. v. MAT Sports, LLC, No. 03-cv—01591-WYD-MEH, 

2008 WL 4854161, at *3 (D. Colo. Nov. 10, 2008) (“Plaintiff’s request to enforce the agreement 

should be granted.”). 

DLC asks for that same remedy here as in Feerer, Starr, and Huntwise. Indeed, that was 

why DLC has requested twice that this Court retain jurisdiction of this Settlement Agreement, so 

it could act in this very situation and order the State to fulfill its promises. There is nothing novel 

or unique about this request, which stems from the basic contractual remedy of specific 

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performance. As stated above, DLC did not elect the exclusive, worthless remedy of indefinite 

extensions to the agreement but retained its right to pursue all remedies available to it under law. 

The State’s own cases confirm that DLC’s remedy is reasonable. The State cites two cases 

where the Tenth Circuit affirmed awards of attorney’s fees to be paid by the government for their 

bad faith conduct in not honoring settlement agreements. United States v. McCall, 235 F.3d 1211, 

1217 (10th Cir. 2000) (cited in Dkt. 97 at 14); Anthony v. United States, 987 F.2d 670, 674 (10th 

Cir. 1993) (stating that “where the government enters into an agreement with its citizens, it has a 

duty to act with at least a minimum standard of decency, honor, and reliability”) (internal 

quotations and citation omitted; cited in Dkt. 97 at 14). The Defendants here have operated since 

at least 2015 far below the government’s minimum standard of decency, honor, and reliability. 

The legal positions taken here that an agreement brokered with Magistrate Boland is not worth the 

paper it is written on is another example of the State taking extreme positions unsupported by basic 

contract law. 

The State cited another case for the proposition that sophisticated parties entering into an 

agreement should be bound to the agreement’s terms. Colo. Interstate Corp. v. CIT Grp./Equip. 

Fin., Inc., 993 F.2d 743, 749 (10th Cir. 1993) (quoted in Dkt. 97 at 14). DLC agrees and notes the 

case’s next sentence states “there are significant policy reasons for upholding hell or high water 

clauses” in those sophisticated contracts. Id. Here, the State committed itself to a “hell or high 

water” clause to comply with the 24- and 28-day deadlines absent the six-month exception for 

DSC. The State now wants to have the ability to never comply with those deadlines under the fig 

leaf of serial DSC invocations or ending DLC’s ability to compel the State to comply with the 

agreement. The State is the most sophisticated party. It entered into this agreement for the first 

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time over a decade ago in Zuniga and twice has agreed to the current framework. It must comply, 

come hell or high water. 

CONCLUSION 

The Court should rule that Defendants (a) currently are in breach of the 2016 Settlement 

Agreement; (b) could not legally have invoked the DSC exception a second time in December 

2017; and (c) breached the Agreement by failing to satisfy the six-month DSC exception in 

December 2017. The Court should deny the State’s motion for summary judgment. Based on 

those rulings, the Court should order immediate compliance with the Settlement Agreement’s 

deadlines (upon pain of contempt). Finally, the Court should also award Plaintiff’s counsel their 

reasonable costs and attorneys’ fees under 42 U.S.C. §§ 1983 and 1988. 

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DATED: September 5, 2018. 

Respectfully submitted, 

s/ Iris Eytan 

Iris Eytan 

EYTAN NIELSEN LLC 

3200 Cherry Creek South Drive 

Denver, CO 80209 

Telephone: 720.440.8155 

Facsimile: 720.440.8156 

Email: iris@eytan-nielsen.com 

s/ Caleb Durling 

Caleb Durling 

FOX ROTHSCHILD LLP 

1225 Seventeenth Street, Suite 2200 

Denver, CO 80202 

Phone: (303) 945-7416 

Email: cdurling@foxrothschild.com 

Attorneys for Plaintiff Center for Legal Advocacy, 

d/b/a Disability Law Colorado

s/ Mark J. Ivandick 

Mark J. Ivandick 

Jennifer Purrington 

DISABILITY LAW COLORADO

455 Sherman St., Ste. 130 

Denver, CO 80203 

Telephone: 303.722.0300 

Facsimile: 303.722.0720 

Email: mivandick@disabilitylawco.org 

s/ Ellie Lockwood 

Ellie Lockwood 

Timothy P. Scalo 

SNELL AND WILMER LLP 

1200 Seventeenth Street, Suite 1900 

Denver, CO 80202 

Telephone: 303-634-2000 

Facsimile: 303-634-2020 

Email: elockwood@swlaw.com; 

tscalo@swlaw.com 

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CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on September 5, 2018, a true and correct copy of this 

motion was electronically filed the foregoing with the Clerk of the Court using the CM/ECF 

system, which will send notification of such filing to the following e-mail addresses: 

Tanja E. Wheeler 

Lauren Peach 

Libbie McCarthy 

First Assistant Attorney General 

Colorado Department of Law 

State Services Section 

Ralph L. Carr Colorado Judicial Center 

1300 Broadway, 6th Floor 

Denver, CO 80203 

Counsel for Defendants 

/s/Linda Casanova 

Linda Casanova 

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