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 Superintendent of the Colorado Mental Health 

Institute at Pueblo,

Defendants.

ORDER ON MOTION FOR APPOINTMENT OF SPECIAL MASTER

Magistrate Judge Nina Y. Wang

This matter comes before the court on Plaintiff Center for Legal Advocacy d/b/a Disability 

Law Colorado’s (“DLC” or “Plaintiff”) Motion for Appointment of Special Master (or “Motion”), 

filed December 6, 2018. See [#117]. The Motion is before the undersigned pursuant to the Order 

of Reference dated February 21, 2012 [#44], the Order of Reassignment dated November 19, 2015 

[#58], 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and D.C.COLO.LCivR 72.2. The court retained

ancillary jurisdiction over this civil action pursuant to Kokkonen v. Guardian Life Ins. Co. of Am., 

511 U.S. 375, 381 (1994). Accordingly, having reviewed the Motion, associated briefing, and

applicable case law, the court GRANTS the Motion for Appointment of Special Master. 

BACKGROUND

The court has discussed the background of this matter in its Memorandum Opinion and 

Order on the Parties’ Cross-Motions for Summary Judgment, see [#113], and discusses it here only 

as it pertains to the instant Motion. On November 9, 2018, the court granted in part and denied in 

part DLC’s Motion for Summary Judgment, denied Defendants Reggie Bicha and Jill Marshall’s 
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(collectively, “Defendants” or “the Department”) Motion for Summary Judgment, and set a Status 

Conference for November 30, 2018 to discuss discovery and an evidentiary hearing regarding the 

Department’s invocation of Department Special Circumstances (“DSC”) in June and December 

2017. See generally [#113]. At the November 30, 2018 Status Conference, Plaintiff proposed that 

the court consider appointing a special master, and this court discussed a discovery schedule1in 

contemplation of a five-day evidentiary hearing to commence on March 18, 2019. See [#115].

DLC filed the instant Motion on December 6, 2018, requesting that the court appoint a 

Special Master to assist the Parties and the court. See [#117 at 2-5]. Plaintiff proposes appointment 

of “Groundswell Services and its team of Drs. Neil Gowensmith and Daniel Murrie,” who “have 

tremendous, relevant experience.” [Id. at 7]. DLC further contends that the Department should 

bear the costs of a Special Master because it “had already agreed in the 2016 Settlement Agreement 

to pay for Dr. Dvoskin [who was initially selected to act as an independent consult to assist with 

Defendants’ compliance efforts]” and because this court has determined the Department to be in 

breach of the 2016 Settlement Agreement. See [id. at 7-8]. Finally, DLC requests that the duration 

of appointment last “for the duration of the Amended Settlement Agreement” or “[a]t a minimum, 

. . . until such time that the Department returns to compliance and the Court enters final judgment 

against Defendants for their breaches of the Amended Settlement Agreement.” [Id. at 8]. 

Defendants filed a Response on December 13, 2018. See [#118]. Defendants agree that 

appointment of a Special Master will serve the interests of the Parties and the court. See [id. at 1]. 

Further, Defendants agree to the appointment of Groundswell Services and its team of Drs. Neil 

Gowensmith and Daniel Murrie, and agree to bear the costs of such appointment, “provided the 

 

1 The court issued a separate Minute Order outlining the scope of discovery ahead of the 

evidentiary hearing. See [#116]. 
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duties of the Independent Consultant are stayed as proposed in Plaintiff’s Exhibit 8 and 

Defendants’ Exhibit A, and the duties and duration of the special master are adopted as outlined 

in Exhibit A.” [Id. at 2]. Defendants also request that the duration of the appointment last until 

Defendants have “maintained compliance with the Settlement Agreement timeframes concerning 

inpatient competency restoration services for three months,” with the potential for a longer 

duration upon DLC’s showing of good cause. See [id. at 2-3]. 

LEGAL STANDARD

Rule 53 of the Federal Rules of Civil Procedure provides the court with the authority to 

appoint a special master under certain circumstances. See Fed. R. Civ. P. 53(a), (b); accord BartlettCollins Co. v. Surinam Nav. Co., 381 F.2d 546, 550 (10th Cir. 1967) (explaining that “reference to 

a Master shall be the exception and not the rule”). And “‘a federal district court has the inherent 

power to supply itself with [a special master] for the administration of justice when deemed by it 

essential.’” United States v. State of Conn., 931 F. Supp. 974, 984 (D. Conn. 1996) (quoting Ruiz 

v. Estelle, 679 F.2d 1115, 1161 n.240 (5th Cir. 1982). “The use of masters is ‘to aid judges in the 

performance of specific judicial duties, as they may arise in the progress of a cause,’ and not to 

displace the court.” La Buy v. Howes Leather Co., 352 U.S. 249, 256 (1957) (quoting Ex Parte 

Peterson, 253 U.S. 300 (1920)). See also WRIGHT & MILLER, FEDERAL PRACTICE AND 

PROCEDURE: CIVIL 2d § 2601 (1995) (the appointment of a master is for the purpose of assisting 

the court to obtain facts). 

ANALYSIS

As mentioned, the Parties agree that appointment of a Special Master in this matter serves 

their interests as well as the court’s. The Parties further agree to the appointment of Groundswell 

Services and its team of Drs. Neil Gowensmith and Daniel Murrie, and that Defendants will bear 
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the costs of appointment. Thus, the court agrees that a Special Master is warranted, and therefore 

GRANTS the Motion. 

During the Status Conference held before the court on December 18, 2018, it appeared that 

despite the difference in language in the Parties’ respective proposals regarding the scope of the 

Special Master’s duties, compare [#117 at 5-6; #117-8] with [#118-1], the Parties do, in fact, agree

that the Special Master will have authority to review the entire competency system as implicated 

by the Settlement Agreement, i.e., inpatient and outpatient competency evaluations and restorative 

treatment. See [#78-1 at 2]. The Parties, however, disagree as to the duration of the Special 

Master’s appointment. Thus, this Order will not and cannot serve as an Order Appointing a Master 

because Rule 53(b) requires such an Order to contain, inter alia, “the master’s duties, including 

any investigation or enforcement duties, and any limits on the master’s authority under Rule 

53(c).” Fed. R. Civ. P. 53(b)(2)(B). And Rule 53 further limits the court’s ability to issue an Order 

Appointing a Master to only after the Special Master “files an affidavit disclosing whether there is 

any ground for disqualification under 28 U.S.C. § 455,” which has not yet been completed. Fed. 

R. Civ. P. 53(b)(3)(A).

Nevertheless, to facilitate the appointment of the Special Master the court ORDERS that 

no later than December 19, 2018, Drs. Neil Gowensmith and Daniel Murrie shall submit to the 

court affidavits concerning “whether there is any ground for disqualification under 28 U.S.C. 

§ 455.” In addition, the court has attached a revised summary of the duties of the Special Master 

reflecting its understanding of the agreed-upon scope by the Parties. To the extent that the Parties

object to the scope as reflected by the summary, they will file their respective objections no later 

than December 19, 2018. The court will then issue a separate, written Order Appointing a Master

and determining the length of such appointment.
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CONCLUSION 

For the reasons set forth herein, the court hereby ORDERS that: 

(1) Plaintiff’s Motion for Appointment of Special Master [#117] is GRANTED; 

(2) No later than December 19, 2018, Drs. Neil Gowensmith and Daniel Murrie shall 

SUBMIT to the court affidavits concerning “whether there is any ground for 

disqualification under 28 U.S.C. § 455;” 

(3) No later than December 19, 2018, the Parties will FILE any objections to the 

summary of the duties of the Special Master as attached as Ex. 1 to this Order; and

(4) A separate, written Order pursuant to Rule 53 of the Federal Rules of Civil 

Procedure will follow.

DATED: December 18, 2018 BY THE COURT:

______________________

Nina Y. Wang

United States Magistrate Judge