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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.

DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY 

JUDGMENT TO ENFORCE SETTLEMENT AGREEMENT

Disability Law Colorado’s Motion for Summary Judgment (Motion) should be 

denied because it is not entitled to judgment as a matter of law. 

ARGUMENT

I. Disability Law Colorado is not entitled to judgment as a matter of 

law.

The law does not support summary judgment in favor of Disability Law 

Colorado because: 1) the Department’s non-performance of the timeframes was 

contemplated by the parties and does not constitute a breach of the Amended and 

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Restated Settlement Agreement (Agreement); 2) the Department’s December 2017 

invocation of Departmental Special Circumstances (DSC) was permitted by the 

Agreement; 3) the Department has not breached the implied covenant of good faith 

and fair dealing; and 4) the Department’s invocation of DSC complies with the 

terms of the Agreement. In its Motion, Disability Law Colorado argues that the 

Department is breaching the Amended and Restated Settlement Agreement 

(Agreement) because it has not met the timeframes for more than a year, because 

the Department’s December 2017 invocation of DSC was improper, because the 

Department’s December 2017 invocation of DSC breaches the implied covenant of 

good faith and fair dealing, and because neither invocation of DSC was justified 

based on the Agreement. Notwithstanding Disability Law Colorado’s failure to cite 

to undisputed material facts in support of its Motion,1 its arguments fail as a 

matter of law.

A. The Department’s non-performance of the timeframes was 

contemplated by the parties and does not constitute a breach 

of the Agreement.

In order to prevail on summary judgment on its claim that the Department

breached the parties’ contract by not meeting the Agreement’s timeframes, 

 1 Disability Law Colorado fails to cite to materials in the record which it believes 

are undisputed and it largely fails to cite to specific facts supporting its arguments. 

Instead, Disability Law Colorado cites to conclusory and unsupported allegations, 

such as its interpretation of unidentified data. Disability Law Colorado relies on 

this Court’s July 12, 2018 order to justify its failure to cite to undisputed facts. Dkt. 

96, fn. 2. This does not meet the threshold requirements for summary judgment. A 

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Disability Law Colorado must show, by undisputed facts: “(1) the existence of a 

contract; (2) performance by the plaintiff or some justification for nonperformance; 

(3) failure to perform the contract by the defendant; and (4) resulting damages to 

the plaintiff.” Spring Creek Expl. & Prod. Co v. Hess Bakken Inv., II, LLC, 887 F.3d 

1003, 1033 (10th Cir. 2018) (citing W. Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 

(Colo. 1992)); see also, e.g., Stoole v. Metro. Prop. & Cas. Ins. Co., 17-CV-0613-NYW, 

2018 WL 3126112, at *3 (D. Colo. June 26, 2018). Critical to any analysis of breach 

in this case is the principle that not every non-performance of a duty is a breach of 

contract. Arthur L. Corbin, Timothy Murray, Joseph M. Perillo, John E. Murray, 

Jr., Corbin on Contracts § 943 (1952); see also Restatement (First) of Contracts § 

312 (Am. Law Inst. 1932) (“The promisor does not necessarily commit a breach of 

contract if he fails to perform his promise.”).

Disability Law Colorado does not address three of the four Spring Creek 

factors necessary to demonstrate breach by the Department; instead it only 

addresses the third factor, i.e. – failure to perform the contract by the defendant. 

Because it fails to meet its burden to show, by undisputed facts, all four factors, it is 

 

party asserting that a fact cannot be genuinely disputed must support the assertion 

by citing to particular parts of materials in the record. Fed. R. Civ. P. 56(c)(1)(A) 

(emphasis added); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (“Of course, a 

party seeking summary judgment always bears the initial responsibility of 

informing the district court of the basis for its motion” and identifying what 

information it believes demonstrates the absence of a genuine issue of material 

fact).

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not entitled to summary judgment as a matter of law. Spring Creek Expl. & Prod. 

Co., 887 F.3d at 1033.

And, Disability Law Colorado has not met the one Spring Creek factor that it 

did address, namely, that the Department failed to perform under the contract. 

Disability Law Colorado argues that non-performance of the timeframes amounts to 

a breach, and relies on its assertion that the Department has failed to admit all 

eligible pretrial detainees within 28 days in support of this argument. Dkt. 96, p.5 ¶ 

I (A).2 Contrary to Disability Law Colorado’s conclusory assertion, the Department 

has complied with the admission timeframes for inpatient competency evaluations. 

This is undisputed. Dkt. 97, Ex. B. Given this, all that is at issue here is whether 

the Department’s non-performance of the timeframe requirements related to 

 2 Disability Law Colorado’s Motion also makes numerous allegations not relevant to 

the four issues stipulated to by the parties and presently before this Court. Dkt. 88, 

¶ I (A)(i)-(iv). For instance, Disability Law Colorado alleges that: 1) the “State” 

admits that it is holding pretrial detainees in jail for months even though it 

concedes the detainees would be better served in the community; 2) the “State” is 

keeping individuals charged with low-level offenses in jail and often in 

administrative segregation or solitary isolation; and 3) that the wait times (for 

admission for restoration treatment) often exceed the amount of time individuals 

would have served if they pled guilty. Dkt. 96, pp. 6-7. The Department denies each 

of these allegations. The Department objects to similar allegations of this nature 

throughout Disability Law Colorado’s Motion, which are largely irrelevant to the 

four issues before this Court. Because the factual allegations go far beyond the 

scope of the issues before the court, and are thus irrelevant, the Department does 

not respond in further detail to them. But, should the Court entertain Disability 

Law Colorado’s myriad other allegations, the Department reserves its right to 

respond.

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inpatient restoration treatment services constitutes a breach of the Agreement. It 

does not.

The Agreement contemplates the possibility that the Department may not be 

able to meet the inpatient restoration timeframes, and includes language 

addressing such a circumstance. If non-performance of the inpatient restoration 

timeframes amounted to a breach, there would be no need for language in the 

Agreement providing consequences for such non-performance.3 See Arthur L. 

Corbin et al., Corbin on Contracts § 943 (1952); see also Restatement (First) of 

Contracts § 312 (Am. Law Inst. 1932). Because Disability Law Colorado has not met 

its burden under Spring Creek, it is not entitled to judgment as a matter of law. 

B. The Department’s December 2017 invocation of DSC was 

permitted by the Agreement.

Next, Disability Law Colorado argues that the Department’s December 2017 

invocation of DSC was a breach of the Agreement because this was the second time 

the Department invoked DSC. This argument fails as a matter of law because it 

runs afoul of multiple principles of contract construction. 

1. Disability Law Colorado’s interpretation would require this Court to 

add terms to the Agreement.

By suggesting that the Department cannot invoke DSC consecutively and 

more than once, Disability Law Colorado asks this Court to add limitations into the 

 3 The Department’s arguments in its Motion for Summary Judgment that its nonperformance does not constitute a breach of the Agreement is incorporated by 

reference as if fully set forth herein. Dkt. 97, pp. 18-21.

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Agreement for which the parties did not bargain. This violates the well-established 

principle of contract construction that a court may not add, delete, or rewrite terms 

of a contract. See SOLIDFX, LLC v. Jeppesen Sanderson, Inc., 841 F.3d 827, 836 

(10th Cir. 2016) (“it is not the business of the courts to draft a better contract for the 

parties than they did for themselves.” (citing Allstate Ins. Co. v. Huizar, 52 P.3d 

816, 820 (Colo. 2002) (“[C]lear and unambiguous provisions cannot simply be 

rewritten by the courts”), and Kan. City Life Ins. Co. v. Pettit, 99 Colo. 268, 61 P.2d 

1027, 1028 (1936) (“It is elementary a court cannot make a new contract in lieu of 

the one originally entered into by the parties themselves.”)); Colo. Interstate Corp..

v. CIT Grp./Equip. Fin., Inc., 993 F.2d 743, 749 (10th Cir. 1993) (“Where 

sophisticated parties enter into an agreement setting forth their rights and 

obligations, the terms of the agreement should control unless the agreement would 

otherwise be void under state law.”).

The parties bargained for DSC and the language governing its application 

was negotiated on two separate occasions separated by the passage of four years. 

See Dkt. 97, ¶¶ 3, 4, 6-9, 14-18. The terms regarding DSC, and the Agreement as a 

whole, are unambiguous. Though the Agreement places limits on the Department’s 

ability to invoke DSC, those limits do not include the language that Disability Law 

Colorado asks the Court to write into the Agreement. Dkt. 78-1, ¶ 6(a)(ii) (setting 

forth limitations on the circumstances under which DSC may be invoked). 

Accordingly, this Court should not add language to the Agreement which is not 

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found within the four-corners of the parties’ contract. Ewing’s Lessee v. Burnet, 36 

U.S. 41, 54 (1837) (the court will first take the instrument by its four corners, in 

order to ascertain its true meaning); N.Y. Life Ins. Co. v. K N Energy, Inc., 80 F.3d 

405, 409 (10th Cir. 1996) (when the contract is unambiguous the parties’ intent is to 

be determined from the face of the contract itself (citing Gardner v. City of 

Englewood, 282 P.2d 1084, 1090 (Colo. 1955))).

2. Disability Law Colorado’s interpretation would render DSC terms 

meaningless, and fails to read the agreement as a whole. 

Disability Law Colorado contends that permitting the Department to invoke 

DSC successively would violate the principles of contract construction because it 

would render meaningless the Agreement’s six-month automatic suspension of 

timeframes. Dkt. 96, p. 7, ¶ I(B) (referring to Dkt. 78-1, ¶ 6(c), relying on Summit 

Bank & Tr. v. Am. Modern Home Ins. Co., 71 F. Supp. 3d 1168, 1171 (D. Colo. 

2014)). Yet, it is Disability Law Colorado’s reading that would render all of DSC 

meaningless because it would ignore the plain language of the agreement. The 

Agreement allows the Department to invoke DSC when there are circumstances 

beyond its control that impact the Department’s ability to comply with the 

timeframe requirements. Spring Creek Expl. & Prod. Co., 887 F.3d at 1018 (the 

court “should be wary of viewing clauses or phrases in isolation, instead reading 

them in the context of ‘the entire contract seeking to harmonize and to give effect to 

all provisions so that none will be rendered meaningless’” (internal citations 

omitted)).

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Disability Law Colorado also argues that because the Agreement explicitly 

allows successive invocation of Individual Special Circumstances (ISC), and is silent 

as to successive invocation of DSC, successive invocation of DSC is not permitted.

This reading requires the Court to read DSC without considering the provisions of 

the Agreement as a whole, contrary to rules of contract construction. Spring Creek 

Expl. & Prod. Co., 887 F.3d at 1018; Slowson Expl. Co. v. Vintage Petroleum, Inc., 

78 F.3d 1479, 1482 (10th Cir. 1996) (courts must review a contract as a whole, 

including exhibits, to determine the intent of the parties). 

Disability Law Colorado’s interpretation ignores plain terms that define ISC 

differently than DSC. Indeed, circumstances applicable to one discrete pretrial 

detainee are distinct from circumstances that impact the entire population of 

pretrial detainees. See, e.g., Dkt. 78-1, ¶ 6(a)(i) (defining ISC as applicable to 

situations that delay the offer of admission to a single pretrial detainee); Dkt. 78-1, 

¶ 6(a)(ii) (defining DSC as applicable to situations that impact the Department’s 

ability to comply with the timeframes as to all pretrial detainees). The use of 

different language does not allow a construction of the Agreement which fails to 

read the contract as a whole. Texaco, Inc. v. Holsinger, 336 F.2d 230, 233 (10th Cir. 

1964) (“all of the language used anywhere in the instrument should be taken into 

consideration and construed in harmony with other provisions of the contract.”).

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3. Disability Law Colorado assumed the risks associated with the terms 

it negotiated, and as such, the agreement must be applied as written.

Disability Law Colorado asserts that it would never have agreed to successive 

invocation of DSC. However, it did not negotiate for any limits on the number of 

times the Department may invoke DSC. As a sophisticated party entering into a 

significant contract, Disability Law Colorado assumed the risk associated with the 

terms of that contract, and should be held to its terms as written. Colo. Interstate 

Corp., 993 F.2d at 749; United States v. Winstar Corp., 518 U.S. 839, 905 (1996); 

Ewing’s Lessee, 36 U.S. 41, 54 (1837). 

But, Disability Law Colorado would have the Court ignore these wellestablished principles of contract construction. Indeed, as written, the Agreement’s 

terms, entered into by sophisticated parties, plainly allow the Department to invoke 

DSC, while also placing express limits on the Department’s ability to do so (i.e.,

when there are circumstances beyond its control impacting its ability to comply 

with the timeframe requirements).4 Dkt. 78-1, ¶ 6(a)(ii). Disability Law Colorado 

assumed the risk of those terms, and should be held to its plain language. Winstar 

Corp., 518 U.S. at 905; Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 

1192, 1211 (10th Cir. 2007). 

 4 The Department’s argument in its Motion for Summary Judgment concerning its 

ability to invoke DSC consecutively and more than once is incorporated by reference 

as if fully set forth herein. See Dkt. 97, pp. 14-17.

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For each of these reasons, Disability Law Colorado’s argument that the 

Department’s December 2017 invocation of DSC was a breach of the Agreement, 

fails as a matter of law.

C. The Department has not breached the implied covenant of 

good faith and fair dealing.

Disability Law Colorado argues in the alternative that the December 2017 

invocation of DSC constitutes a breach of the implied covenant of good faith and fair 

dealing. This argument also fails as a matter of law because it requires the Court to 

read terms into the Agreement for which the parties did not bargain. 

The implied covenant of good faith and fair dealing cannot contradict terms 

or conditions for which a party has bargained. Amoco Oil CoErvin, 908 P.2d 493,

498 (Colo. 1995) (citing Hubbard Chevrolet Co. v. General Motors Corp., 873 F.2d 

873, 877 (5th Cir.)(1989)). Good faith performance of a contract involves 

“faithfulness to an agreed common purpose and consistency with the justified 

expectations of the other party.” Id. (citing Wells Fargo Realty Advisors Funding, 

Inc. v. Uioli, Inc., 872 P.2d 1359, 1363 (Colo. App. 1994).

The Department had a justified expectation that the Agreement did not 

prohibit it from invoking DSC more than one time and consecutively. The plain 

terms of the Agreement place no restriction on the number of times or timing of the 

Department’s DSC invocation. Disability Law Colorado and the Department, 

sophisticated parties, engaged in multiple negotiations, and twice amended the 

Agreement. At no time did Disability Law Colorado negotiate for or obtain language 

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in the Agreement with the restrictions on DSC it now suggests exist. Indeed, 

reading such terms into the Agreement would be manifestly inappropriate under 

the circumstances.5 As such, Disability Law Colorado cannot now claim a breach of 

the implied covenant of good faith when it agreed to include the provisions 

permitting DSC in the Agreement, and it cannot rely on the principle to contradict 

the conditions of DSC for which it bargained. Id. Accordingly, the law does not 

support summary judgment in Disability Law Colorado’s favor on this argument.

D. The Department’s invocation of DSC complies with the terms 

of the Agreement.

Disability Law Colorado lastly argues that the Department’s December 2017 

DSC invocation violated the Agreement because it did not meet the Agreement’s 

definition of DSC. Because this argument ignores the plain language of the 

Agreement, it is contrary to law and must also fail. 

Under Colorado law, courts must construe the terms of an agreement in a 

manner that allows each party to receive the benefit of the bargain, and the scope of 

the agreement must faithfully reflect the reasonable expectations of the parties. 

SOLIDFX, LLC, 841 F.3d at 833 (citing Allen v. Pacheco, 71 P.3d 375, 378 (Colo. 

2003)). “[U]nambiguous contracts are enforced according to their plain, general, and 

common meaning in order to ensure the intentions of the parties are enforced.”

 5 Department’s argument in its Motion for Summary Judgment concerning its 

ability to invoke DSC consecutively and more than once is incorporated by reference 

as if fully set forth herein. See Dkt. 97, pp. 14-17.

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Lincoln v. BNSF Ry. Co., No. 17-3120, 2018 WL 3945875, at *9–10 (10th Cir. Aug. 

17, 2018) (quoting NeustromUnion Pac. R.R. Co., 156 F.3d 1057, 1063 (10th Cir. 

1998)). Courts must first examine the plain language of the contract, and will 

enforce the agreement as written unless there is an ambiguity in the language. 

SOLIDFX, LLC, 841 F.3d at 833 (citing Allen, 71 P.3d at 378). Ambiguity does not 

appear unless it is genuinely uncertain which of two or more meanings is the proper 

meaning. Lincoln, 2018 WL 3945875, at *9–10 (citing Neustrom, 156 F.3d at 1063).

A contract is ambiguous if it “contains provisions or language of doubtful or 

conflicting meaning, as gleaned from a natural and reasonable interpretation of its 

language.” Id. at *10 (internal citations omitted). “Courts should not strain to create 

an ambiguity where, in common sense, there is none.” Id.; see also SOLIDFX, LLC, 

841 F.3d at 833 (courts should neither rewrite the agreement nor limit its effect by 

a strained construction.)

The Agreement states:

“Departmental Special Circumstances,” means 

circumstances beyond the control of the Department

which impact the Department’s ability to comply 

with the timeframes set forth in Paragraph 2. This 

could mean an unanticipated spike in referrals, a 

national or statewide disaster impacting admissions 

decisions system wide. These examples are provided 

for illustration only. Departmental Special 

Circumstances is a flexible concept, due to the 

unique and often unforeseen nature of these events.

(emphasis added). Dkt. 78-1, ¶ 6(a)(ii). So, DSC plainly means circumstances 

beyond the Department’s control which impact its ability to comply with the 

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Agreement’s timeframe requirements. This language is not ambiguous. See 

SOLIDFX, LLC, 841 F.3d at 833. 

However, Disability Law Colorado selectively picks words from the DSC 

definition to create a new one that requires circumstances “‘outside the control of 

the Department’—something ‘unique’ or ‘unforeseen,’ akin to a ‘statewide disaster.’” 

Dkt. 96, p. 9. The plain language definition of DSC speaks for itself and the Court 

should decline Disability Law Colorado’s invitation to create a new one. 

Though the Agreement does not require DSC to be unique or unforeseen, the 

Department’s June 2017 invocation was based on an unanticipated spike in courtordered referrals for inpatient competency evaluation and restoration treatment 

services. Compare Exhibit C – BestReferralsPerMonth_July 2018, Column L, Rows 

14, 16, and 18 (reflecting 84 orders for inpatient competency evaluation and 

restoration services in April 2017) with Exhibit C, Columns M and N, Rows 14, 16, 

and 18 (reflecting 110 orders for inpatient competency evaluations and restoration

services in May and June 2017, respectively). The number of court orders entered 

statewide requiring the Department to provide inpatient competency evaluations 

and restoration treatment services is beyond the Department’s control—this fact is 

not reasonably subject to dispute.6 It follows then, that any spike in the number of 

 6 The Department provides inpatient competency evaluations and restoration 

treatment services pursuant to Colorado law. §§ 16-8.5-101, et seq.; 27-65-107, 

C.R.S. (2017). It does not control whether or where a court orders a defendant to 

receive those services. Id.

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court orders for such services is also beyond the Department’s control, thus meeting 

the definition of DSC. Dkt. 96-2, p. 6.

In December 2017, the Department also invoked DSC. That invocation was 

based on the fact that, since the spike in referrals during June 2017, courts have 

continued to order pretrial detainees for inpatient restoration services at the same 

elevated level. Compare Exhibit C – BestReferralsPerMonth_July 2018, Columns IL, Row 14 (reflecting 49, 49, 38, and 57 orders for inpatient restoration services in 

January through April 2017, respectively) with Exhibit C, Columns M-T, Row 14 

(reflecting 65, 61, 62, 76, 65, 66, 76, 68, orders for inpatient restoration services in 

May through December 2017, respectively). For the same reasons as stated above, 

the Department also does not control the number of court orders continually 

entered statewide. So, a persistent elevated number of court orders for such services 

is also beyond the Department’s control, thus meeting the definition of DSC. Dkt. 

96-3, p. 3.

Disability Law Colorado does not dispute the fact that there was an increase 

in the number of court orders in 2017, or that the Department cannot control any 

spike or sustained increase in the number of court orders for inpatient competency 

evaluations and restoration treatment services. Dkt. 96, p. 11. Disability Law 

Colorado also does not dispute whether the Department had the resources to

manage the elevated volume of orders when it invoked DSC in December 2017. Dkt. 

96, pp. 11. Instead, it argues that the Department should have foreseen the increase 

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in court orders, and increased its resources accordingly. Id. By suggesting this

requirement, Disability Law Colorado alters the DSC definition to add a 

foreseeability element. This is contrary to the principles of contract construction.

In sum, Disability Law Colorado’s proposed interpretation of DSC is contrary 

to the foundational rules of contract construction. Instead of interpreting the plain 

language of the Agreement as required by SOLIDFX, LLC, 841 F.3d at 833 (citing

Allen, 71 P.3d at 378), Disability Law Colorado insists upon an interpretation that 

is not natural or reasonable based on the Agreement’s plain language. Lincoln, 2018 

WL 3945875, at *9–10. In addition, adopting Disability Law Colorado’s 

interpretation of DSC would limit the effect of the provision in a manner 

inconsistent with the Department’s reasonable expectations and deprive it the 

benefit of its bargain. SOLIDFX, LLC, 841 F.3d at 833; Allen, 71 P.3d at 378. The 

law does not support such a strained construction. SOLIDFX, LLC, 841 F.3d at 833.

Accordingly, summary judgment should not be granted in favor of Disability Law 

Colorado on this argument.

II. Contempt is not available to Disability Law Colorado.

Contempt is not available to Disability Law Colorado because this Court’s 

Order of Dismissal Under Fed. R. Civ. P. 41(a)(2) in July 2016 (Order) approves the 

Agreement and incorporates it by reference, but does not expressly lay out 

provisions of the Agreement that Disability Law Colorado alleges the Department 

has violated. 

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In the context of a settlement agreement, contempt is available in limited 

circumstances. Where a settlement agreement is approved by the court “[it] is 

nothing more than a contract; the imprimatur of an injunction is required to render 

it a consent decree enforceable through contempt.” Consumers Gas & Oil, Inc. v. 

Farmland Indus., Inc., 84 F.3d 367, 370 (10th Cir. 1996) (quoting D. Patrick v. Ford 

Motor Co., 8 F.3d 455, 460 (7th Cir.1993)) (emphasis added). For a settlement 

agreement to have the meaning and effect of an injunction, the order approving the

settlement agreement must go further than simply incorporating the agreement’s

terms by reference. Instead, the order approving the settlement agreement must 

meet the minimum requirements of F.R.C.P. 65(d)(1)(C), which explicitly requires

an order of injunction to “describe in reasonable detail—and not by referring to the 

complaint or other document—the act or acts restrained or required.” More 

specifically, the order must include an explanation of the reasons for its issuance, 

details of the order’s specific terms, and a description of the restrained acts. New 

Mexico v. Trujillo, 813 F.3d 1308, 1319 (10th Cir. 2016). This requirement of a 

reasonably detailed description of the restrained or required acts aligns with due 

process requirements necessarily intertwined with contempt enforcement efforts. 

FTC v. Kuykendall, 371 F.3d 745, 756-57 (10th Cir. 2004) (party seeking contempt 

order has the burden to prove four specific elements, by clear and convincing 

evidence, including that the defendants had knowledge of, and disobeyed, the order) 

(quoting Reliance Ins. Co. v. Mast Constr. Co., 159 F.3d 1311, 1315 (10th Cir. 1998)); 

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see also D. Patrick, Inc., 8 F.3d at 460–61 (the complaining party must demonstrate 

by clear and convincing evidence that the respondent has violated the express and 

unequivocal command of a court order).

In 2016, the parties entered into the Agreement, and as a result, filed a joint 

motion to dismiss Disability Law Colorado’s prior Motion to Reopen Action for 

Enforcement of Settlement Agreement. Dkt. 78. Subsequently, this Court entered 

the Order, which contained five statements addressing: 1) the Court’s jurisdiction 

over the matter; 2) the Court’s approval of the Agreement between the parties; 3) a 

directive that “[t]he Parties shall comply with the terms of their Settlement 

Agreement entered into on July 28, 2016, a copy of which appears on the docket for 

this case at [#78-1] and is incorporated by reference as if fully set forth herein”; 4) 

retention of jurisdiction over the settlement and enforcement of the Agreement; and 

5) dismissing the case pursuant to Fed. R. Civ. P. 41(a)(2). Dkt. 80.

While the Order approving the Agreement states the reasons for its 

issuance—a satisfactory agreement between the parties resolving the dispute—it 

does not meet the other requirements of an injunction order because it does not 

detail specific terms or describe the restrained acts. Dkt. 80. The only reference to 

either specific terms or restrained acts is through the incorporation of the 

Agreement by reference. Dkt. 80, ¶ 3. However, incorporation by reference is not 

enough to render the Agreement a consent decree enforceable through contempt. 

F.R.C.P. 65(d)(1)(C); Consumers Gas & Oil, Inc., 84 F.3d at 370. Consequently, 

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there is no legal basis to treat the Order as making the Agreement capable of being 

enforced through contempt;7 it is a contract between the parties and must be 

interpreted and enforced as such. Consumers Gas & Oil, Inc., 84 F.3d at 370. 

Accordingly, the appropriate remedy for enforcement of the Agreement is extension

of the Agreement’s duration, as agreed upon by the parties.8

CONCLUSION

Throughout its Motion, Disability Law Colorado has failed to show that it is 

entitled to judgment as a matter of law. Accordingly, its Motion should be denied and 

this Court should decline to impose the relief Disability Law Colorado seeks.

CYNTHIA H. COFFMAN

Attorney General

s/ Tanya E. Wheeler

TANYA E. WHEELER, 37089*

First Assistant Attorney General

 7 Disability Law Colorado claims that the Department’s letters to state courts in 

individual criminal cases justify ordering immediate compliance upon pain of 

contempt in this matter. Dkt. 96, p. 12. The Department disputes Disability Law 

Colorado’s characterization of Exhibit 5 as containing an admission of any sort. The 

Department has never admitted violating constitutional rights of pretrial detainees. 

Additionally, Disability Law Colorado invites this Court to enter an order mirroring 

those of various state courts. Dkt. 96, pp. 13-14. While some of those orders have 

resulted in certain individuals being admitted immediately, a collateral impact of 

these orders is that other individuals have waited even longer than they otherwise 

would have because of the “line jumping” this has created. See Exhibit D – Order re: 

Motion for Order for CMHIP to Immediately Transfer Mr. G to CMHIP Pursuant to 

the Court’s Order to Provide Him Restoration Treatment, People v. D.G. None of 

this justifies, or provides a legal basis for, this Court to enter the order Disability 

Law Colorado seeks.

8 The Department’s arguments in its Motion for Summary Judgment concerning the 

appropriate remedy in this matter are incorporated by reference as if fully set forth 

herein. See Dkt. 97, pp. 22-24.

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ELIZABETH J. MCCARTHY, 37799*

Senior Assistant Attorney General

LAUREN K. PEACH, 49234*

Assistant Attorney General

State Services Section

1300 Broadway, 6th Floor

Denver, CO 80203

Telephone: (720) 508-6151

FAX: (720) 508-6041

Email: tanja.wheeler@coag.gov

libbie.mccarthy@coag.gov

lauren.peach@coag.gov

*Counsel of Record

Attorneys for Defendants

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CERTIFICATE OF SERVICE (CM/ECF)

The undersigned hereby certifies that on this 5th day of September, 2018, a 

true and correct copy of this DEFENDANTS’ RESPONSE TO PLANITIFF’S 

MOTION FOR SUMMARY JUDGMENT TO ENFORCE SETTLEMENT 

AGREEMENT, was electronically filed with the Clerk of the Court using the 

CM/ECF system, which will send notification of such filing to the following e-mail 

addresses:

Caleb Durling

FOX ROTHSCHILD LLP

1225 17th Street

Suite 2200

Denver, CO 80202

Telephone: 303-945-7415

Facsimile: 303-974-7468

Email: cdurling@foxrothschild.com

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

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

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/Sandra Martinez

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