Trueblood v. Washington State Department of Health and Human Services

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE A.B., by and through her next friend CASE NO. C14-1178 MJP CASSIE CORDELL TRUEBLOOD, et al., ORDER MODIFYING ORDER ON MOTION FOR MATERIAL Plaintiffs, BREACH OF CONTEMPT SETTLEMENT AGREEMENT v. DEPARTMENT OF SOCIAL AND HEALTH SERVICES, et al., Defendants.

This matter comes before the Court on the Parties’ Implementation Plan and Joint Proposal For Amendments to the Court’s Order on Plaintiffs’ Motion for Material Breach of the Contempt Settlement Agreement. (Dkt. No. 1019.) Having reviewed the Joint Proposal and all supporting materials, and having held oral argument on the Joint Proposal on August 7, 2023, the Court hereby ORDERS the modifications set forth below to the Order on Plaintiff’s Motion for Material Breach of the Contempt Settlement Agreement (Dkt. No. 1009) (“Breach and Contempt Order”). The Court makes these modifications to provide clarification to the Breach and Contempt Order, and in response to some of the concerns raised by the Parties. And although the Court notes that Defendants have filed a notice of appeal of the Breach and Contempt Order, the Court believes that it continues to have jurisdiction to make these modifications because they will likely aid the Ninth Circuit upon its review. See In re Silberkraus, 336 F.3d 864, 869 (9th

Cir. 2003) (noting that after a notice of appeal is filed, the district court may properly issue an order amending the order on appeal if it aids the Ninth Circuit’s review). The Court ORDERS the following modifications: 33(a) Defendants shall immediately Defendants shall immediately cease admitting cease admitting Civil Conversion Civil Conversion patients to the state hospitals for patients to the state hospitals for ordered civil commitment treatment, except for ordered civil commitment patients who have been charged with a “violent treatment, except for patients for offense” under RCW 9.94A.030(58). Civil whom the commitment court has Conversion patients charged with a “violent made a special finding of violent offense” under RCW 9.94A.030(58) are referred felony pursuant to Wash. Rev. to in this Order as “HB1114 patients.” This Code § 71.05.280(3)(b) (which the admission restriction applies only to Civil Parties refer to as “HB 1114 Conversion patients, and not to HB1114 patients patients”). or any other patients seeking entry into the state hospitals. 33(c) Within 60 days, Defendants shall Within 60 days, Defendants shall discharge all discharge or transfer all non-HB civil patients in forensic beds out of the state 1114 patients out of the state hospitals or transfer them into non-forensic beds. hospitals. Defendants may transfer civil patients who have been admitted to the state hospitals into non- forensic beds without violating the bar on admitting new Civil Conversion patients set out in Paragraph 33(a).

For purposes of this Order and the Breach and Contempt Order (Dkt. No. 1009), “forensic bed” means one of the 303 forensic beds within the state system including all state hospitals and outside restoration programs (i.e. Building 27, Maple Lane, or any programs accepting class members for restoration) that Defendants agreed to provide under the Contempt Settlement Agreement. The Court notes that the 303 forensic beds are the minimum required to comply with the Contempt Settlement Agreement only, not the Court’s Permanent Injunction.

The discharge mandate is a one-time process intended to remove non-Class Members from forensic beds. After this one-time effort, the 21- day transfer mandate attached to the contempt fines in Paragraph 33(e) are the intended mechanism for ensuring Civil Conversion patients do not continue to occupy forensic beds. 33(c) If discharge or transfer of a non- If discharge or transfer of a civil patient in a HB 1114 patient is not possible forensic bed is not possible within 60 days, within 60 days, Defendants shall Defendants shall provide the Court Monitor and provide the Court Monitor with a Plaintiffs with a report explaining why discharge report explaining why discharge of of the patient is impossible and a date certain for the patient is impossible and a date discharge or transfer. Any report proposing certain for discharge or transfer. discharge or transfer more than 90 days of this Any report proposing discharge or Order must also be presented to the Court for transfer more than 90 days of this review and approval. Order must also be presented to the Court for review and approval. 33(d) Defendants shall ensure that all Defendants shall ensure that all vacated forensic vacated forensic beds at the state beds are made available to and immediately filled hospitals are made available to and with Class Members. immediately filled with Class Members. 33(e) The Court imposes a fine per Civil The Court imposes a fine per Civil Conversion Conversion patient held in a patient held in a forensic bed at the state hospitals forensic bed at the state hospitals or at an outside restoration program on a per day on a per day basis. Defendants basis. Defendants shall pay a fine for each day shall pay a fine for each day spent spent in a forensic bed at the state hospitals or at in a state hospital forensic bed an outside restoration program beyond 21 days beyond 21 days after dismissal of after dismissal of the patient’s underlying the patient’s underlying criminal criminal case. For each Civil Conversion patient case. For each Civil Conversion held in a forensic bed at the state hospitals or at patient held in a forensic bed for an outside restoration program for more than 21 more than 21 days after dismissal days after dismissal of the underlying criminal of the underlying criminal charge, charge, but less than 28 days, the daily fine shall but less than 28 days, the daily be $1,000 per day. For each Civil Conversion fine shall be $1,000 per day. For patient who is held in a forensic bed at the state each Civil Conversion patient who hospitals or at an outside restoration program 28 is held in a forensic bed 28 days or days or more, the daily fine shall be $2,000 per more, the daily fine shall be day. The existing in-jail and inpatient fines shall $2,000 per day. The existing in- remain in place. jail and inpatient fines shall remain in place. These time limits, and fines to be issued, begin 60 days after the Court’s July 7, 2023 Breach and Contempt Order (September 5, 2023). For purposes of calculating fines, the 21-day period shall begin: (1) for Civil Conversion patients already in residence in the state hospital or outside restoration program and in a forensic bed, upon DSHS’s receipt of the civil conversion dismissal order from the criminal court; (2) for HB-1114 patients who are not already residents in a forensic bed at the state hospital or an outside restoration program, upon admission to the state hospital or outside restoration program if that patient is admitted into a forensic bed. The fine shall cease when the Civil Conversion patient is no longer occupying a forensic bed at the state hospital or outside restoration program.

All other provisions in the Breach and Contempt Order remain unaffected by this Order. The clerk is ordered to provide copies of this order to all counsel. Dated August 14, 2023. A Marsha J. Pechman United States Senior District Judge