4812-1519-5778

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 MOTION FOR APPOINTMENT OF SPECIAL MASTER

Plaintiff Center for Legal Advocacy, d/b/a Disability Law Colorado (“DLC”) respectfully 

moves the Court to appoint a special master and recommends that the Court appoint Groundswell 

Services, Inc. for that task.

1. The Court at the November 30, 2018 hearing identified that there are two tracks to 

this case. One is a hearing to resolve whether Defendants Reggie Bicha and Jill Marshall 

(collectively the “Department”) properly invoked DSC in June and December 2017 and to what 

relief Plaintiff is entitled for breach of the Amended Settlement Agreement. Dkt. 116 at 1 n.1. 

The other is resolving how and when the Department can come back into compliance with the 

timeframes for inpatient restoration set out under the 2016 Settlement Agreement and, by 

extension, comply (or come closer to complying) with the United States Constitution. Id. On this 

Case 1:11-cv-02285-NYW Document 117 Filed 12/06/18 USDC Colorado Page 1 of 10
4812-1519-5778

2

latter issue, the Court asked but received no answers as to the current waitlist and when the 

Department can come back into compliance.1 Partly in response, this Court ordered “Defendants 

to submit to Plaintiff and the court ‘a plan to remedy the Departmental Special Circumstances, and 

the projected timeframe for Resolution’ as contemplated by Paragraph 6(c) of the Amended and 

Restated Settlement Agreement no later than December 14, 2018, including but not limited to 

addressing the status of the proposed Plans reflected in the June 22, 2017 and December 22, 

2017 letters as they pertain to inpatient restoration programs.” Dkt. 116 ¶ 7 (emphasis in 

original).

2. The Court also strongly encouraged the parties to consider if there is a path to 

resolution of this case through settlement rather than litigation. One of the issues holding back 

settlement, from DLC’s perspective, is a lack of transparency and information from the 

Department about when they can come back into compliance and the alleged circumstances

causing the Department’s frequently-invoked inability to comply with the timeframes for inpatient 

restoration required by the Amended Settlement Agreement (and its predecessor).

3. The common themes running through these issues are: (1) lack of trust among the 

parties; (2) lack of information provided to DLC and the Court as to the actual situation and 

timeline to return to compliance; (3) lack of any plan by the Department to resolve its inability to 

comply; and (4) lack of success in prior, lengthy negotiations regarding resolution. 

 1 DLC last received data on November 7, 2018 showing the Department remains out of 

compliance with the restoration timeframes under the Amended Settlement Agreement. Its review 

of the numbers indicates the average wait time was at least 58.6 days and the longest wait time 

was 186 days—over half a year.

Case 1:11-cv-02285-NYW Document 117 Filed 12/06/18 USDC Colorado Page 2 of 10
4812-1519-5778

3

4. Nor should DLC be tasked with solving the Department’s problems. DLC is a nonprofit organization that does not have a forensic psychologist systems specialist on staff who can 

provide meaningful feedback to the Department regarding its broken system. 

5. DLC respectfully submits there is a solution which can solve (or at least address) 

all of these problems: appointment of a special master. 

6. The Court has broad, inherent authority to appoint a special master and there are 

numerous justifications for doing this under the current circumstances. Appointment of a special 

master is a form of immediate and constructive relief for the Department’s June 2018 and ongoing 

breach of the Amended Settlement Agreement. 

7. First, special masters are used routinely by courts in complex and complicated 

cases. Rule 53 provides for the appointment of special masters under a variety of circumstances 

and to perform various roles, including to “address pretrial and posttrial matters that cannot be 

effectively and timely addressed by an available district judge or magistrate judge of the district,” 

or to “recommend findings of fact on issues to be decided without a jury if appointment is 

warranted by . . . some exceptional condition.” Fed. R. Civ. P. 53(a)(1)(B)(i). Here, a special 

master is necessary to assist the Court in effectively addressing the complex and technical issues 

surrounding the Department’s repeated and prolonged failures to comply with the Settlement 

Agreement’s timeframes, and the unconstitutional, statewide backlog of mentally ill pretrial 

detainees awaiting competency evaluations constitutes an exceptional condition warranting such 

an appointment.

8. It is not uncommon to have a special master in litigation like this one involving the 

warehousing of persons in jails who are deemed incompetent and denied timely restoration 

Case 1:11-cv-02285-NYW Document 117 Filed 12/06/18 USDC Colorado Page 3 of 10
4812-1519-5778

4

treatment (“jail wait litigation”). The Utah jail wait settlement provided for a special master who 

is Dr. Patrick Fox, who until recently was the head of Colorado’s Office of Behavioral Health. See 

Exhibit 1 (recent Utah special master report by Dr. Fox). Alabama’s jail wait litigation involves a 

special master filing quarterly reports. See Exhibit 2 (recent Alabama special master report). The 

State of Washington has a court-ordered independent monitor who supervises its jail wait 

settlement to assess and evaluate the data and assists in providing the State of Washington, the 

Court and parties with realistic solutions. See Exhibit 3 (Groundswell report). Additionally, as 

requested here, the State of Washington’s Defendant was ordered to submit detailed monthly 

reports to the Independent Monitor while out of compliance. See Exhibit 4 (April 2018 Report to 

the Independent Monitor).

9. Second, the Court has already held that Defendants are in breach since June 22, 

2018. Dkt. 113 at 25. It has reserved ruling on the ultimate remedies, but it retains broad ability 

to fashion a remedy. Id. at 25-27. Appointing a special master squarely falls within those rights.

10. Third, the Court has general equitable powers and they are served here by 

appointment. “Beyond the provisions of [Fed. R. Civ. P. 53] for appointing and making references 

to Masters, a Federal District Court has the inherent power to supply itself with this instrument for 

the administration of justice when deemed by it essential.” Sibley v. Sprint Nextel Corp., 298

F.R.D. 683, 685 (D. Kan. 2014) (internal quotation marks omitted; second bracketed alteration in 

original) (quoting Schwimmer v. United States, 232 F.2d 855, 865 (8th Cir.1956)); see also Reed 

v. Cleveland Bd. of Ed., 607 F.2d 737, 746 (6th Cir. 1979) (holding that the authority to appoint 

“expert advisors or consultants . . . derives from either Rule 53 . . . or from the ‘inherent power’ 

of the court”); Trentadue v. U.S. Cent. Intelligence Agency, 2:08-CV-0788, 2015 WL 1968263, at 

Case 1:11-cv-02285-NYW Document 117 Filed 12/06/18 USDC Colorado Page 4 of 10
4812-1519-5778

5

*6 (D. Utah Apr. 30, 2015) (“[E]xercising its inherent powers, the Court hereby APPOINTS 

Magistrate Judge Dustin B. Pead as Special Master in this action.”).

11. Finally, the Court has the power to refer matters to a special master, including for 

“adopting special procedures for managing potentially difficult or protracted actions that may 

involve complex issues.” Fed. R. Civ. P. 16(c)(2)(H, L). 

12. Defendants may claim this is a punitive measure, but it is not intended to be. The 

Department, DLC, and the Court need expert guidance and information for different reasons in a 

situation where all parties and the Court agree there is a problem of statewide importance that 

needs to be resolved as quickly as possible and, hopefully, permanently. Appointing someone to 

support the parties and the Court to that end goal will benefit everyone, including most importantly 

the thousands of mentally ill detainees who have been or are being forced to wait months in jail to 

receive any mental health treatment from the Department and in violation of their constitutional 

rights.

13. Here, the special master would provide a beneficial and much needed resource to 

the Court and the parties and would serve multiple functions, including accomplishing important 

tasks such as: 

(a) preparing objective expert reports for the Court and the parties analyzing 

why this problem has persisted and not improved for 18 months, and 

suggesting various methods to improve the system;

(b) evaluating the Department’s data and plans (including the Court-ordered 

December 14, 2018 plan) from a forensic systems perspective, including 

assessing the plan’s strengths and weaknesses for potentially remedying the 

current crisis; 

(c) conducting a historical evaluation of the system, including analyzing the 

Department’s frequent inability to comply with the required timeframes and 

Case 1:11-cv-02285-NYW Document 117 Filed 12/06/18 USDC Colorado Page 5 of 10
4812-1519-5778

6

addressing why the Department consistently invokes Departmental Special 

Circumstances and how that can be avoided in the future;

 

(d) receiving monthly reports from the Department (or as the Court orders) to 

collaborate with the Department to employ protocols, systems, and data 

collection for both transparency and to evaluate its own needs, weaknesses 

and hopefully accomplishments; 

(e) providing expert feedback to the Department on how to fix a system that 

has been broken for at least a decade; 

 

(f) testifying at the March 2019 hearing as an impartial expert to give the Court 

guidance and perspective on the problems that exist and the solutions 

moving forward; and 

(g) continuing, after the March 2019 hearing, to monitor Defendants’ efforts to 

come into compliance and its steps toward remaining in compliance and, 

ultimately, could be part of the permanent remedies ordered by the Court in 

its final resolution of these proceedings to enforce the Settlement 

Agreement.

14. The parties previously agreed to have an independent consultant assist the 

Department with compliance-related issues under the Amended Settlement Agreement. Dkt. 71-

1 § 7(a)-(f). His name is Dr. Joel Dvoskin. Unfortunately, Dr. Dvoskin has not been used by the 

Department as an effective resource. For example, it does not appear that Dr. Dvoskin has ever

analyzed the monthly data or provided specific detailed plans for the remediation of the waitlist. 

Indeed, months after filing the Motion to Reopen the Settlement Agreement, Dr. Dvoskin emailed 

counsel for the parties asking what was going on in the case, as the last he heard the parties had 

been attempting to settle. See Exhibit 5 (email to Dr. Dvoskin). It appears that Dr. Dvoskin is not 

receiving any data from the Department (and has not for many months). It is not for today to 

assign blame for Dr. Dvoskin being sidelined, but the fact remains an independent expert that 

answers to the Court, and not the Defendants, is needed.

Case 1:11-cv-02285-NYW Document 117 Filed 12/06/18 USDC Colorado Page 6 of 10
4812-1519-5778

7

15. DLC proposes Groundswell Services and its team of Drs. Neil Gowensmith and 

Daniel Murrie. They have tremendous, relevant experience. They have served as consultants for 

the state of Washington’s forensic mental health system from 2014 to 2018 and as lead consultants 

and expert witnesses in the 2015 federal class-action lawsuit. See Ex. 3. They also serve as 

consultants to the Los Angeles County Department of Health Services on these issues. 

16. Dr. Gowensmith is someone who has credibility with both parties. DLC believes 

he can be an objective resource for the parties and the Court. Dr. Gowensmith has worked 

extensively for the state as a competency evaluator. Dr. Gowensmith has offered to allow Dr. 

Murrie to be the lead on the project to further ensure it is even-handed. The resumés of Drs. 

Gowensmith and Murrie are attached as Exhibit 6.

17. Attached as Exhibit 7 is a letter of interest from Groundswell about the position. In 

addition, DLC has worked with Groundswell and created a list of proposed duties, attached here 

as Exhibit 8. 

18. For compensation, the Department should be ordered to pay for Groundswell’s 

services. The Department had already agreed in the 2016 Settlement Agreement to pay for Dr. 

Dvoskin. Dkt. 78-1 § 7(e); see also Brock v. Ing, 827 F.2d 1426, 1428 (10th Cir. 1987) (“In a 

given case, fairness may suggest that the expense be borne by one of the parties . . . . [T]he expense 

of the Master, caused by the ‘wrongdoer,’ should be borne by the ‘wrongdoer.’”). 

19. Furthermore, Rule 53 provides the Court with the authority to allocate 

responsibility for payment of the special master’s fees to the Department. See Fed. R. Civ. P. 

53(g)(3). It is ultimately the State’s constitutional and statutory obligations to solve this problem 

and implement a constitutionally-sound system. It receives millions of dollars in funding for doing 

Case 1:11-cv-02285-NYW Document 117 Filed 12/06/18 USDC Colorado Page 7 of 10
4812-1519-5778

8

so every year. As the party in breach, it should be responsible for paying the special monitor’s 

fees and costs in this case—not a non-profit and its pro bono counsel or the Court which have been 

forced to devote considerable resources to monitoring the Department’s actions and managing the 

Amended Settlement Agreement due to Defendants’ breach. The agreement with Dr. Dvoskin can 

be modified by the new scope of duties provided to the special master and ordered by the Court.

20. As part of the appointment process, the Court will be tasked with determining the 

length of the special master’s appointment. DLC believes it would be in everyone’s interest for 

the special master to be in place for the duration of the Amended Settlement Agreement. At a 

minimum, the Court should appoint the special master 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. 

CONCLUSION

Everyone agrees there is a serious problem with Defendants’ persistent and ongoing failure 

to comply with the timeframes for providing inpatient restoration services to pretrial detainees

required by the Amended Settlement Agreement. The parties and the Court need answers and 

assistance from a forensic systems psychologist with experience in matters such as this one. The

appointment of an impartial, empowered expert will help everyone in this case. Groundswell is 

an entity that can work with and for the parties and the Court to provide such services and 

assistance. More than a remedy to Defendants’ breach, this is a step toward a meaningful and 

long-term solution.

///

Case 1:11-cv-02285-NYW Document 117 Filed 12/06/18 USDC Colorado Page 8 of 10
4812-1519-5778

9

DATED: December 6, 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

Case 1:11-cv-02285-NYW Document 117 Filed 12/06/18 USDC Colorado Page 9 of 10
4812-1519-5778

10

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on December 6, 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

Libbie McCarthy

Sarah Richelson

Ann Pogue

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/Sandy Braverman

Sandy Braverman

Case 1:11-cv-02285-NYW Document 117 Filed 12/06/18 USDC Colorado Page 10 of 10