Center for Legal Advocacy v. Bicha et al

Filing 123

ORDER ON MOTION FOR APPOINTMENT OF SPECIAL MASTER by Magistrate Judge Nina Y. Wang on 12/18/2018. Plaintiff's Motion for Appointment of Special Master 117 is GRANTED; No later than December 19, 2018, Drs. Neil Gowensmith and Daniel Mur rie shall SUBMIT to the court affidavits concerning whether there is any ground for disqualification under 28 U.S.C. § 455; 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 A separate, written Order pursuant to Rule 53 of the Federal Rules of Civil Procedure will follow. (Attachments: # 1 Exhibit Proposal for Special Master Duties)(nywlc2, )

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

(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 schedule 1 in
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

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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

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