Burnside et al v. Richard Whitley et al, No. 2:2013cv01102 - Document 44 (D. Nev. 2015)

Court Description: ORDER Granting 43 Revised Stipulated/Consent Judgment. The effective date of this Consent Decree is the date the Court enters the Decree. The duration of this Consent Decree will be five (5) years from the Effective Date. Signed by Judge Miranda M. Du on 12/22/2015. (Copies have been distributed pursuant to the NEF - NEV)
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Burnside et al v. Richard Whitley et al 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Doc. 44 Margaret A. McLetchie Nevada Bar No. 10931 MCLETCHIE SHELL, LLC 701 E. Bridger Ave., Ste 520 Las Vegas, Nevada 89101 (702)728-5300 Philip J. Kohn CLARK COUNTY PUBLIC DEFENDER Nevada Bar No. 0556 Christy Craig Nevada Bar No. 6262 309 S. Third Street, Suite #226 Las Vegas, Nevada 89155 (702) 455-4685 Attorneys for Plaintiffs Adam Laxalt ATTORNEY GENERAL Julie A. Slabaugh Senior Deputy Attorney General Nevada Bar No. 5783 100 N. Carson St. Carson City, Nevada 89701 Attorneys for Defendants 16 17 18 19 20 21 22 23 24 25 26 27 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ERIC BURNSIDE, an individual, JAUMAL PUGH, an individual, NICHOLAS DURAN, an individual, Plaintiffs, ) ) Case No. 2:13-cv-01102-MMD-GWF ) ) ) v. ) REVISED PROPOSED MODIFIED ) CONSENT DECREE, ORDER, AND RICHARD WHITLEY, in his official capacity ) JUDGMENT as acting Administrator of the Nevada Division ) of Mental Health and Developmental Services, ) et al. ) Defendants. ) __________________________________________) Defendants, Richard Whitley, Dr. Elizabeth Neighbors and Michael Willden 28 1 Dockets.Justia.com 1 (hereinafter Defendants) in their official capacities,1 by and through counsel, Adam Paul 2 Laxalt, Attorney General of the State of Nevada, and Julie A. Slabaugh, Senior Deputy 3 Attorney General, and Plaintiffs, by and through counsel, Margaret A. McLetchie, of 4 McLetchie Shell, LLC, and Philip J. Kohn, Clark County Public Defender, and Christy Craig, 5 Chief Deputy Public Defender, jointly hereby respectfully submit the attached revised 6 proposed modified Consent Decree, Order, and Judgment and Plan for review and approval by 7 this Court. Further information detailing the bases for the proposed modifications detailed 8 herein are detailed in the Parties’ Joint Status Report filed on November 30, 2015 (Doc. # 39). 9 10 MCLETCHIE SHELL LLC 11 ADAM PAUL LAXALT Attorney General 12 Date: December 21, 2015 Date: December 21, 2015 /s/ Julie A. Slabaugh Julie A. Slabaugh Senior Deputy Attorney General 100 North Carson Street Carson City, Nevada 89701 (775) 684-1131 Attorneys for Defendants /s/ Margaret A. McLetchie Margaret A. McLetchie 701 East Bridger Avenue, Suite 520 Las Vegas, Nevada 89101 (702) 728-5300 13 14 15 16 17 PHILIP J. KOHN Clark County Public Defender 18 19 Date: December 21, 2015 20 21 /s/ Christy Craig Christy Craig, Chief Deputy Public Defender 309 South Third Street, Suite 226 Las Vegas, Nevada 89155 (702) 455-4685 Attorneys for Plaintiffs 22 23 24 25 26 1 27 28 Since the filing of this action Richard Whitley has been appointed the Director of the Nevada Department of Health and Human Services and Cody Phinney has been appointed the Administrator of the Division of Public and Behavioral Health, formerly the Division of Mental Health and Developmental Services. 2 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 5 6 7 8 9 10 11 12 ERIC BURNSIDE, an individual, JAUMAL PUGH, an individual, NICHOLAS DURAN, an individual, ) ) Case No. 2:13-cv-01102-MMD-GWF ) ) Plaintiffs, ) ) MODIFIED v. ) CONSENT DECREE, ) ORDER, AND JUDGMENT RICHARD WHITLEY, in his official capacity ) as acting Administrator of the Nevada Division ) of Mental Health and Developmental Services, ) et al. ) Defendants. ) __________________________________________) 13 The Court has reviewed and considered the Modified Consent Decree, Order, and 14 Judgment entered into by the parties and is of the opinion that it is a fair and reasonable 15 resolution of the issues pending between them. Based thereon, the Court hereby approves the 16 proposed Modified Consent Decree (and attached Plan) and hereby approves the proposed 17 Consent Decree and directs the entry of the Order and Judgment as follows: 18 BACKGROUND 19 20 21 22 23 24 1. The Modified Consent Decree resolves disputes pertaining to the above- captioned civil action for injunctive and declaratory relief pursuant to 42 U.S.C. § 1983 brought by Plaintiffs Eric Burnside, Jaumal Pugh, and Nicolas Duran (collectively, “Plaintiffs”) against Richard Whitley, in his official capacity as Administrator of the Nevada Division of Public and Behavioral Health (DPBH); Dr. Elizabeth Neighbors, in her official capacity as Director Of Lake’s Crossing Center for the Mentally Disordered Offender; and 25 Michael J. Willden, in his official capacity as Director of the Nevada Department of Health 26 and Human Services (collectively, “Defendants”). 27 2. Plaintiffs are all pretrial detainees who have been or will be committed to the 28 3 1 custody of the DPBH pursuant to Nev. Rev. Stat. 178.425 (“Incompetent Detainees”)2. 3. 2 Section 178.425(1) of the Nev. Rev. Stat. requires that, upon entry of an order 3 from the Eighth Judicial District Court of Nevada finding a criminal defendant incompetent, 4 the judge shall order the Sheriff to convey the defendant (incompetent detainee) forthwith to 5 the custody of the Administrator of the Division of Public and Behavioral Health of the 6 Department of Health and Human Services of the State of Nevada (the “Division”) to receive 7 Prompt Restorative Treatment, as defined below. Formerly, Lakes Crossing Center for the 8 Mentally Disordered Offender (LCC), located in northern Nevada, was the only facility in 9 Nevada operated by the Division for the purpose of treating incompetent detainees such as 10 Plaintiffs. Defendants have begun providing treatment to incompetent detainees in Southern 11 Nevada. 4. 12 Plaintiffs alleged that Defendants failed to provide court-ordered treatment to 13 incompetent detainees in violation of Plaintiffs’ substantive and procedural due process rights 14 guaranteed by the Fourteenth Amendment to the United States Constitution. 5. 15 The Ninth Circuit has held that incompetent detainees must be transferred to an 16 appropriate mental health treatment facility within seven (7) days of the court’s finding of their 17 incapacity to stand trial. Oregon Advocacy Center v. Mink, 322 F. 3d 1101, 1123 (9th Cir. 18 2003). 6. 19 Similar issues as those raised in this litigation were previously litigated in 20 Nevada Disability Advocacy and Law Center, Inc v. Carlos Brandenburg, U.S. District Court 21 of Nevada Case No. CV-S-05-0782-RCJ (RJJ) (“NDALC Case”). In an April 2008 Settlement 22 Agreement and Release of Claims (“Agreement”) entered into in the NDALC Case, the 23 directors of DHHS, MHDS and Lakes Crossing agreed that all incapacitated criminal 24 defendants must be provided “Prompt Restorative Treatment” at an MHDS facility. The 25 26 27 28 Agreement defined “Prompt Restorative Treatment” as providing appropriate treatment to competency within seven (7) days from MHDS’s receipt of a court order. In the Agreement, DHHS and MHDS agreed to a minimum of three (3) years of monthly status reports regarding 2 See Definitions. 4 1 the Prompt Restorative Treatment of all Incapacitated Defendants. The required reporting and 2 oversight ended in 2011. 7. 3 In the instant litigation, Plaintiffs have alleged that, less than two (2) years after 4 the “required reporting and oversight” ended, Defendants have returned to the 2005 practice of 5 denying incompetent criminal defendants the required Prompt Restorative Treatment, thereby 6 violating the substantive and procedural due process rights of said defendants. Plaintiffs have 7 also alleged that Defendants are unable to promptly accept incompetent detainees for Prompt 8 Restorative Treatment by Lakes Crossing that incompetent detainees have routinely spent 9 weeks and, in most cases, months, at detention facilities where the conditions are punitive and 10 no Prompt Restorative Treatment is available. 8. 11 Plaintiffs and Defendants (collectively, “the parties”) agreed that it is in the 12 parties’ best interests, and in the public interest, to resolve this lawsuit on mutually agreeable 13 terms without further litigation. Accordingly, the parties agreed to the entry of the Consent 14 Decree without trial or further adjudication of any issues of fact or law raised in the Complaint; 15 the Consent Decree was previously entered in this matter on January 29, 2014 (Doc. # 25). 9. 16 Subsequently, Plaintiffs filed a motion for an order to show cause as to why 17 Defendants should not be held in contempt for failing to comply with the consent decree (Doc. 18 # 29). 19 10. Based on the pleadings, this Court made a finding that Defendants violated the 20 consent decree (Doc. # 36), but held a hearing on October 28, 2015 to address the appropriate 21 remedies for Defendants’ failure to comply with the Consent Decree. After that hearing, the 22 Court directed counsel to meet and confer to propose a plan for compliance with the Consent 23 Decree, which the Court noted may include using an independent monitor to oversee 24 compliance. (Doc. # 38). 25 26 27 28 11. As detailed in the parties’ November 30, 2015 status report, the parties subsequently met and conferred extensively. While Plaintiffs are disappointed with Defendants’ failures to comply, they have worked with Defendants to develop a plan of action they hope will bring Defendants into conformity with the law, particularly in light of the 5 1 addition of recent beds to accommodate incompetent detainees in Clark County. The parties 2 submitted a Proposed Modified Consent Decree, Order, and Judgment (Doc. # 40, “initial 3 proposed modified consent decree”) noting that the instant litigation pertains to Clark County 4 and setting forth a plan under which Defendants would provide Prompt Restorative Treatment, 5 as defined below, to incompetent detainees in Clark County by March 6, 2016 and statewide by 6 June 1, 2016.3 12. 7 The Court held a hearing on that initial proposed modified consent decree 8 Order, and Judgment on Tuesday, December 15, 2015, wherein the Court posed questions to 9 Counsel. The Court: (1) directed counsel to provide date reflecting the amount of time Clark 10 County detainees experience and how much time detainees from the rest of the state 11 experience; (2) asked counsel for Defendants to determine what additional hardship might 12 accrue to the State if the Court were to require the State of Nevada to meet the time lines for all 13 state detainees statewide by April 1, 2016 rather than June 1, 2016, and (3) directed counsel to 14 submit any revised proposed consent decree by 5 p.m. on Monday, December 21, 2015. 13. 15 16 THIS CONSENT DECREE IS IN THE PUBLIC INTEREST 17 18 19 20 This Revised Proposed Modified Consent Decree follows.4 14. This Consent Decree is in the public interest because it establishes a clear plan for providing Prompt Restorative Treatment to Incompetent Detainees in Clark County and statewide while attempting to balance the safety concerns of the detainees, the staff and the community. 21 22 Clark County 23 15. Defendants have already opened beds at Stein Hospital, as well as beds at the 24 “C-Pod” unit of Rawson Neal. These beds accommodate the historical and current long waiting 25 list of Incompetent Detainees awaiting Prompt Restorative Treatment (“Waiting List,” as 26 3 27 28 It also detailed a schedule for reducing the Waiting List that Defendants represented they would follow. 4 Due to the holiday schedule, this document is executed by counsel. A consent reflecting Defendants’ approval will be filed after court approval. 6 1 defined below) in Clark County and provide needed beds in Clark County. While some 2 Incompetent Detainees from Clark County will still need to be transported to Lakes Crossing 3 due to security issues (Lakes Crossing is a more secure environment than either Stein or the C- 4 Pod), having beds available in Clark County, where the majority of the State’s population 5 lives, for the first time has already reduced the Waiting List in Clark County due to the 6 logistical problems it solves. Further, as discussed below, the increase in beds in Clark County 7 also benefits Incompetent Detainees in the rest of the state. 8 16. Further, if the Waiting List is not in fact reduced according to that schedule, 9 specific enforcement mechanisms are set forth herein and Plaintiffs will require that 10 Defendants institute specific measures, including appointment of a monitor, if Defendants do 11 not follow the schedule they developed. 12 Statewide Benefits 13 17. 14 statewide benefits. 15 18. The Consent Decree also sets forth a plan for compliance statewide and has While they are concerned with violations in other parts of the State, Plaintiffs 16 have asserted and continue to assert that this case is limited to Clark County because it was 17 brought on behalf of Incompetent Detainees improperly held at the Clark County Detention 18 Center to address the Waiting List of Incompetent Detainees awaiting transfers to therapeutic 19 facilities for treatment. Defendants, in contrast, assert that the prior Consent Decree was not, 20 by its terms, limited to Clark County, and are hereby consenting to a plan of action that brings 21 relief statewide to incompetent detainees awaiting treatment. 22 19. However, nothing in this Consent Decree should be interpreted as limiting the 23 rights of Incompetent Detainees in other parts of the State because their interests are not 24 represented in this litigation. 25 26 27 28 20. The focus of recent efforts have been to address the fact that Clark County had no facility to treat Incompetent Detainees. As a result of the fact that previously all Clark County Incompetent Detainees has to be transported to Northern Nevada, the Waiting List of Incompetent Detainees in Clark County has also historically been the most acute problem. For 7 1 example, in 2014 the commitments to Lake’s Crossing Center were broken down as follows: 2 181 from Clark County, 52 from Washoe County and 21 from the other rural counties. In the 3 first six months of 2015 the commitments were: 105 from Clark County, 24 from Washoe 4 County and 7 from the other rural counties. (Doc # 30, Exhibits 1 & 2 and Doc. # 31-1, Exhibit 5 A, pp. 15-19.). This data also reflects that the number of commitments in Clark County were 6 growing at a faster rate than the rest of the state. Further, by virtue of geography, there were 7 additional delays in admissions from Clark County due to the need to transport the detainees 8 across the entire state in an airplane that detainees in Washoe County were not subject to. For 9 example, two airplanes from Clark County had to be canceled in December due to poor 10 11 weather in Washoe County. 21. The commitments to Lake’s Crossing Center from the Rural Counties in Nevada 12 do not all pertain to Incompetent Detainees; the majority of the orders from Rural Counties are 13 for the initial evaluations under NRS 178.415 and are not commitment orders pursuant to NRS 14 178.425. This is a function of the fact that most of the rural counties in Nevada do not have the 15 professional clinicians in the county who can do the pre-commitment evaluations pursuant to 16 NRS 178.415. 17 22. The measures contemplated in this Consent Decree are in the public interest and 18 and bring statewide relief. While the additional beds have been and will be added in Clark 19 County, the increase in numbers will have benefits statewide because they will reduce the 20 demand on beds at Lakes Crossing, freeing up beds to serve Incompetent Detainees from 21 Washoe County and the rural counties of Nevada. As the thirty-four additional beds at the 22 Stein hospital are opened and the current Clark County Waiting List clears, and as more Clark 23 County residents leave Lake’s Crossing Center more beds will be available for detainees from 24 Washoe County and the Rural Counties. Detainees from Washoe County and the Rural 25 26 27 28 Counties will continue to be admitted to Lake’s Crossing Center while the Clark County Waiting List is being cleared just not as in a large of a number as is anticipated once the demand from Clark County has been further reduced. Further, the Defendants and the Washoe County Detention Center along with its medical provider, have developed protocols to provide 8 1 some limited interventions in the jail while the individuals are waiting for a bed at Lake’s 2 Crossing Center. (Doc. 31, pgs. 5-6). Accordingly, the parties hereby AGREE and the Court expressly APPROVES, 3 4 ENTERS AND ORDERS THE FOLLOWING: 5 JURISDICTION AND VENUE 6 1. 7 This Court has jurisdiction over this action pursuant to 42 U.S.C. §§ 1331 and 8 1343. The parties agree that venue is appropriate pursuant to 28 U.S.C. § 1391(b)(2). Plaintiffs 9 assert that this case is limited to Clark County because it was brought on behalf of incompetent 10 detainees improperly held at the Clark County Detention Center to address the Waiting List of 11 incompetent detainees awaiting transfers to therapeutic facilities for treatment.5 Defendants 12 assert that the prior Consent Decree was not, by its terms, limited to Clark County and are 13 hereby consenting to a plan of action that brings relief statewide to incompetent detainees 14 awaiting treatment. 15 DEFINITIONS 16 2. “Incompetent Detainee” is defined for the purposes of this Modified Consent 17 Decree as a person in Clark County that is committed to the custody of the Division of Public 18 and Behavioral Health pursuant to Nev. Rev. Stat. 178.425. 19 3. “Treatment to Competency” is defined for the purposes of this Modified 20 Consent Decree as treatment provided to an Incapacitated Detainee to attempt to cause him to 21 attain competency to stand trial or receive pronouncement of judgment. 22 4. “Prompt Restorative Treatment” is defined for the purposes of this Modified 23 Consent Decree as providing appropriate treatment to competency within seven (7) days from 24 the Division of Public and Behavioral Health’s receipt of a court order. 25 5. “Waiting List” is defined for the purposes of this Modified Consent Decree as 26 the Incompetent Detainees waiting for Prompt Restorative Treatment for more than seven (7) 27 days from the Division of Public and Behavioral Health’s receipt of a court order. 28 5 The Waiting List in Clark County has also historically been the most acute problem. 9 1 6. “Effective Date” is defined for the purposes of this Modified Consent Decree as 2 the date of Court approval. 3 INJUNCTIVE RELIEF 4 General 5 7. Defendant shall designate a representative to have the authority to implement 6 the requirements of this Consent Decree and the Plan and to provide written reports as set forth 7 below (“Designee”). 8 9 8. All information provided pursuant to the above reporting requirements under this Decree should be provided to Plaintiffs via email and U.S. Mail to their counsel. 10 9. Defendants shall take all necessary steps to provide Prompt Restorative 11 Treatment to Incapacitated Detainees in Nevada as soon as possible. Defendants acknowledge 12 that they are legally required to provide Prompt Restorative Treatment, regardless of the fact 13 that the number of incompetent detainees may vary over time and regardless of funding, 14 staffing, and logistical challenges. However, Defendants are not responsible for delays in 15 admission to restorative treatment if they are able to accept admissions but delays outside 16 Defendants’ control do not allow prompt admission. For example, if Defendants are available 17 to accept admissions but there is a delay in admission beyond the Defendant’s control 18 (including but not limited to transportation time frames, medical clearance and failures of self- 19 surrendering detainees to surrender), those delays are not attributable to Defendants. This does 20 not mean, however, that Defendants may rely on lack of funding or staffing, or any increase in 21 the number of incompetent detainees in Clark County or statewide, as an excuse for 22 noncompliance with this Modified Consent Decree. Further, in any proceeding to enforce the 23 terms of this Modified Consent Decree, Defendants shall have the burden of showing that any 24 delay in providing Prompt Restorative Treatment is legally not attributable to Defendants. 25 10. Among the steps Defendants must take to provide Prompt Restorative 26 Treatment is keeping the current beds available for incompetent detainees in Clark County 27 available, including the 20 beds in the C-Pod unit of the Rawson Neal Hospital. 28 /// 10 1 Current Waiting List Data 11. 2 The current Waiting List data is attached as Exhibit 1. The numbers provided 3 only reflect Incompetent Detainees who are committed to the custody of the Division of Public 4 and Behavioral Health pursuant to NRS 178.425, not orders for evaluations pursuant to NRS 5 178.415. Those individuals have not been found incompetent and have not been committed to 6 the Division of Public and Behavioral Health for restoration treatment. 7 Schedule for Compliance 12. 8 9 10 they have represented to Plaintiffs they can achieve compliance in light of the opening of new beds in Southern Nevada. 13. 11 12 Defendants have analyzed historical data and developed a schedule on which Defendants will place incompetent detainees into therapeutic environments and reduce the Waiting List according to the schedule set forth below:6 13 PROJECTED ADMISSIONS 14 WAITING LIST NEW COMMITMENTS 15 Clark County 16 All Other Clark County All Other 24 Clark County All Other 24 6 4 6 4 17 December 18, 2015Waiting List 18 20 Remainder of December of 2015: New Commitments and Admissions Lakes 0 21 Stein 13 22 C-Pod 0 Total 13 19 23 5 5 Effect on Waiting List -7 -1 24 25 (Continued on next page) 26 27 28 6 These numbers reflect only Incompetent Detainees, not persons who are waiting for transfers to Lakes Crossing for other purposes, such as initial evaluations for competency. The data listed for “All Other” reflects the numbers for counties other than Clark. 11 1 PROJECTED ADMISSIONS Clark All County Other 2 3 5 January 1, 2016 Expected Starting Waiting List January of 2016: New Commitments and Admissions Lakes 12 6 Stein C-Pod Total 30 All Other 23 5 8 Clark County 17 NEW COMMITMENTS Clark All County Other 13 7 WAITING LIST 4 9 9 16 16 3 22 2 Stein 12 12 C-Pod 5 13 Total 19 14 Effect on Waiting List -3 -11 March 1, 2016 Resulting Waiting List March of 2016: New Commitments and Admissions Lakes 0 11 2 Stein 13 C-Pod 5 19 Total 20 20 Effect on Waiting List 21 April 1, 2016 Resulting Waiting List 8 -1 February 1, 2016 Resulting Waiting List Lakes 8 16 -14 8 16 Effect on Waiting List 8 9 10 11 15 16 17 18 19 19 19 19 -11 0 0 22 23 24 25 Data Tracking and Reporting 14. Throughout the term of this Consent Decree, Defendants shall track the following data (the “Data”): 26 The starting Waiting List; 27 New commitments; 28 Admissions for each facility; and 12 1 2 The resulting Waiting List. This Data shall be broken down between Clark County and the rest of the state. 15. 3 Defendants shall also collect and compile historical data reflecting the history of 4 commitments and the Waiting List for incompetent detainees for 2008 – November, 2015, and 5 shall provide it to Plaintiffs by January 1, 2016. 16. 6 7 Defendants shall also provide Plaintiffs’ counsel with a written report (“Report”) that includes: 8 (a) The monthly Data for the preceding month;7 9 (b) A specific acknowledgment that Defendants have for the instant reporting period, complied with the requirements of the Decree; and 10 11 (c) A table detailing, for all orders received from the Eighth Judicial District during the 12 prior reporting period, the date the order was received, the date a bed was available 13 for the incapacitated detainee and the date the incapacitated detainee is admitted to 14 restorative treatment. 15 Initially, Defendants shall provide Plaintiffs with a Report for the preceding month on the 10th 16 of every month starting on January 11, 20168 and through March 10, 2016 (or the date 17 Defendants have reached the goal of reducing the Waiting List of Clark County incompetent 18 detainees awaiting transfers to therapeutic environments to zero, whichever comes first). Then, 19 assuming Defendants continue to maintain the Waiting List at zero, Defendants shall provide a 20 Report quarterly (including the three preceding months but showing the Data by month) for a 21 period of five (5) years from the effective date of this Modified Consent Decree, due on the 22 10th day of the month four months after the last monthly report. Defendants shall resume 23 providing a Report monthly if the Clark County Waiting List ever exceeds ten until they have 24 again reduced the Waiting List to zero. 25 7 26 27 28 The January 11, 2015 Report will also provide these required information for November of 2015 as well as December of 2015. 8 If the 10th of the month falls on a weekend or State court holiday, the report will be provided on the following business day. 13 1 Enforcement Mechanisms 2 Additional Beds 3 17. On February 1, 2016, if Defendants have not reduced the Clark County Waiting 4 List to 3, then Defendants will open 20 additional beds to house incompetent detainees in Clark 5 County no later than March 1, 2016.9 6 Monitor 7 18. On March 1, 2016, if Defendants have not reduced the Clark County Waiting 8 List to zero or, at any point thereafter, or if the Clark County Waiting List ever exceeds 10 per 9 month for more than 10 days of two consecutive months (“triggering conditions”), Defendants 10 agree that an independent monitor shall be put into place at Defendants’ expense. Within three 11 (3) business days of the date either of the triggering conditions arise, Defendants shall notify 12 Plaintiffs. The parties shall subsequently meet and confer and submit a joint plan or separate 13 plans for appointment of a monitor to the Court by April 1, 2016 (or 30 days after the date the 14 Clark County Waiting List exceeds 10 for the second consecutive month). 19. 15 In addition, at any time after March 1, 2016 that the Clark County Waiting List 16 exceeds ten, Defendants will also notify Plaintiffs within three (3) business days, and the 17 parties will work together to develop a mutually-agreeable plan for reaching compliance with 18 Defendants’ duty to provide Prompt Restorative Treatment within thirty (30) days or will seek 19 court intervention if necessary, submitting separate plans. 20 Other 21 20. Failure by Plaintiffs to enforce any provision of this Consent Decree shall not be 22 construed as a waiver of their right to enforce other provisions of this Decree, nor as a waiver 23 of their right to enforce that provision in the future 21. 24 25 26 unenforceable, the other terms of this Consent Decree shall nonetheless remain in full force and effect. 22. 27 28 If any term of this Consent Decree is determined by any court to be In addition to the provisions set forth above, Plaintiffs may review compliance 9 This provision will not take effect if the failure to reduce the Waiting List to this level is not attributable to Defendants. 14 1 with this Consent Decree at any time. If Plaintiffs believe that this Consent Decree or any 2 portion of it has been violated, Plaintiffs will raise their concerns with the Designee and the 3 parties will attempt to resolve those concerns in good faith. Under such circumstances, 4 Plaintiffs will give Defendants thirty (30) days from the date it notifies the Designee of any 5 breach of this Consent Decree to cure that breach before filing a motion for contempt or taking 6 any other enforcement action pursuant to this paragraph. Nothing in this paragraph limits 7 Plaintiffs’ rights to seek action as set forth above. 8 9 23. Plaintiffs may seek additional attorneys’ fees and costs for the purposes of enforcing this Modified Consent Decree, and filing a motion for contempt or taking any other 10 enforcement action. 11 OTHER RELIEF 12 24. Defendants shall compensate Plaintiffs for attorneys’ fees and costs related to 13 enforcement of the prior Consent Decree as follows: $36,151.23 to Margaret A. McLetchie of 14 McLetchie Shell, LLC. 15 GENERAL PROVISIONS 16 25. This Consent Decree shall be binding upon Defendants, the Nevada Division of 17 Public and Behavioral Health, Lake’s Crossing Center for the Mentally Disordered Offender, 18 and the Nevada Department of Health and Human Services. 19 26. This Consent Decree constitutes the entire agreement between the parties on the 20 matters raised herein and no other statement, promise, or agreement, either written or oral, 21 made by any party or agents of any party, that is not contained in this written Consent Decree, 22 including its attachments, shall be enforceable. 23 24 25 26 27 28 27. This Consent Decree is not intended to remedy any other potential violations of the rights of pretrial detainees or any law that is not specifically addressed in this Consent Decree. Further, this Consent Decree does not constitute res judicata or collateral estoppel with respect to any individual not a party hereto who has or will be committed to the custody of the Division of Mental Health and Developmental Services pursuant to Nev. Rev. Stat. 178.425. 28. The parties signing this Consent Decree in a representative capacity 15 1 acknowledge and warrant that they have the right to do so. 29. 2 3 Decree. 30. 4 5 The effective date of this Consent Decree is the date the Court enters the The duration of this Consent Decree will be five (5) years from the Effective Date. ORDER 6 7 IT IS SO ORDERED. 8 22nd DATED this _____ day of December, 2015. y , 9 10 11 U.S. DISTRICT COURT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 1 2 3 4 AGREED AND CONSENTED TO: ADAM PAUL LAXALT Attorney General MCLETCHIE SHELL LLC Date: December 21, 2015 Date: December 21, 2015 /s/ Julie A. Slabaugh Julie A. Slabaugh Senior Deputy Attorney General 100 North Carson Street Carson City, Nevada 89701 (775) 684-1131 Attorneys for Defendants /s/ Margaret A. McLetchie Margaret A. McLetchie 701 East Bridger Avenue, Suite 520 Las Vegas, Nevada 89101 (702) 728-5300 Attorneys for Plaintiffs 5 6 7 8 9 10 PHILIP J. KOHN Clark County Public Defender 11 12 13 14 15 16 17 Date: December 21, 2015 /s/ Christy Craig Christy Craig, Chief Deputy Public Defender 309 South Third Street, Suite 226 Las Vegas, Nevada 89155 (702) 455-4685 Attorneys for Plaintiffs 18 19 20 21 22 23 24 25 26 27 28 17