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5 UNITED STATES DISTRICT COURT 6 TERRITORY OF GUAM 7 8 J.C., a person with a disability, et al., 9 Plaintifit: Case No.: CV 01-00041 10 | vs. ORDER RE: PLAINTIFFS’ 11 | EDDIE B. CALVO, in his official TERED EARNEST SS he 2 capacity as Governor of Guam, et al., | SHOW CAUSE IN RE: 3 Defendants. CONTEMPT

14 15 The matters before the Court are Plaintiffs’ motions for orders to show 16 cause why Defendants should not be held in contempt for (a) failing to “proceed 17 forward” in obtaining accreditation from the Joint Commission of Accreditation of 18 Healthcare Organizations (“Joint Commission” or “JCAHO”) or the Centers for 19 Medicare & Medicaid Services (“CMS”); and (b) failing to provide Plaintiff R.A. 20 with annual multi-disciplinary evaluations. 21 I. BACKGROUND 22 On July 25, 2001, two Plaintiffs, J.C. and S.F., brought the present action 23 for declaratory and injunctive relief. On November 8, 2001, the complaint was 24 amended to add a third plaintiff, J.M. All three Plaintiffs asserted claims seeking 25 “appropriate community-based living services.” (Dkt. No. 276 (Findings of Fact 26 and Conclusions of Law) at 3-5.) After a bench trial in 2004, the Court found in a7 favor of Plaintiffs and entered a permanent injunction. (Dkt. No. 277.) On February 3, 2004, a fourth Plaintiff, R.A., file a separate action seeking the same

1 relief. The parties entered into a stipulation that R.A. was similarly situated to the 2 Plaintiffs in this action. On October 6, 2004, R.A.’s action was consolidated with 3 this action, and this action’s findings, conclusions, and orders were made 4 applicable to R.A. (Dkt. No. 288.) The permanent injunction was subsequently 5 amended on June 30, 2005. (Dkt. No. 307 (“Amended Permanent Injunction”).) 6 II. LEGAL STANDARD 7 “Civil contempt ... consists of a party’s disobedience to a specific and 8 definite court order by failure to take all reasonable steps within the party’s power 9 to comply.” Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 774

(9th Cir. 2014) (quoting /n re Dual-Deck Video Cassette Recorder ll Antitrust Litig.,

(9th Cir. 1993)). A contempt sanction is 12 “considered civil and remedial if it either ‘coerce[s] the defendant into compliance 13 with the court’s order, [or] ... compensate[s] the complainant for losses 14 sustained.””! Int’l Union, United Mine Workers of Am. v. Bagwell,

, 15 829 (1994) (quoting United States v. United Mine Workers of Am., 330 US. 258, 16 303-04 (1947)). “The party alleging civil contempt must demonstrate that the 17 alleged contemnor violated the court’s order by ‘clear and convincing evidence,’ 18 not merely a preponderance of the evidence.” Jnst. of Cetacean Research,

at 945 (quoting Dual-Deck, 774 F.3d at 695). 20 Iii. DISCUSSION 21 A. Accreditation 22 Plaintiffs seek to hold Defendants in contempt “for failure to proceed 23 forward in obtaining Joint Commission or CMS accreditation.” (Dkt. No. 1202 at 24 2.) In order to seek contempt for this failure, Plaintiffs must establish that any such 25 failure violated “a specific and definite court order.” Inst. of Cetacean Research, 26 744 F.3d at 945. Neither the original permanent injunction of June 2004 nor the 27 a 28 ' In contrast, a contempt sanction “is punitive and criminal if it is imposed retrospectively for a ‘completed act of disobedience.’” Bagwell,

.

1 Amended Permanent Injunction of June 2005 mentions accreditation of any kind. 2 Plaintiffs rely instead on two documents they contend contain specific and definite 3 court orders. The first is a stipulation between the parties from December 2, 2005. 4 However, the 2005 stipulation was never approved by the Court. Accordingly, 5 none of its provisions constitute a “court order” as necessary to serve as the basis 6 for a contempt finding. 7 Plaintiffs also rely on a second stipulation entered into between the parties 8 on August 31, 2007, which was approved by the Court on November 27, 2007 9 (Dkt. No. 448). The 2007 stipulation contained the following language: 10 Defendants affirm that it is their goal to become JCAHO 11 accredited, and to use JCAHO standards as a “measuring stick” 12 for measuring Defendants’ progress toward compliance with 13 their obligation to meet minimum care standards.... 14 By October 1, 2007, the Directors of DMHSA and DISID shall 15 submit to Plaintiffs’ counsel and the Special Master for their 16 approval a list of measurable milestones identifying the steps 17 necessary for JCAHO accreditation. The list of measurable 18 milestones shall contain specific dates for the proposed 19 completion of the periodic performance review required for 20 JCAHO accreditation... 21 (Dkt. No. 433 (“2009 Stipulation”) at 8-9.) 22 While this stipulation affirms Defendants’ goal to become accredited, it 23 does not contain a specific order requiring them to actually achieve accreditation. 24 The stipulation contains only one specific and definite mandate relating to 25 accreditation: “By October 1, 2007, the Directors of DMHSA and DISID shall 26 submit to Plaintiffs’ counsel and the Special Master for their approval a list of 27 measurable milestones identifying the steps necessary for JCAHO accreditation.” 28

l Defendants complied with this mandate. (See Dkt. No. 437 (Defendants’ list of 2 measurable milestones re: JCAHO accreditation, filed October 1, 20017).) 3 Beyond the requirement of compiling “‘a list of measurable milestones” 4 toward accreditation, the 2007 stipulation contains no other specific and definite 5 order that Defendants “proceed forward” in obtaining Joint Commission 6 accreditation, and Plaintiffs have identified no other provision in any court order 7 that would be violated by a failure to do so. However, despite the lack of any 8 specific court order requiring Defendants to obtain accreditation, the Court is 9 advised that Defendants have in fact obtained accreditation from another 10 accreditation agency, CARF International. (See Dkt. No. 1224.) The Court 11 therefore finds Defendants to be in substantial compliance with the Amended 12 Permanent Injunction and the Court’s prior orders insofar as they relate to 13 accreditation. Accordingly, Plaintiffs’ motion seeking to hold Defendants in 14 contempt “for failure to proceed forward in obtaining Joint Commission or CMS 15 accreditation” is DENIED. 16 B. MDTT Evaluations 17 Plaintiffs also seek to hold Defendants in contempt for alleged failures to 18 provide Plaintiff R.A. with adequate multidisciplinary annual evaluations. The 19 Amended Permanent Injunction provides that “psychiatrists shall serve on a Multi- 20 Disciplinary Treatment Team (‘MDTT’) for any Plaintiff whose individualized 21 service includes the use of behavior modifying medication or for whom such has 22 been recommended.” (Dkt. No. 307 (“Amended Permanent Injunction”) at § 1.J.1.) 23 It further provides: 24 B. The Defendants shall undertake the following measures: 25 1. The Defendants shall conduct an interdisciplinary evaluation 26 of each Plaintiff to determine the specific areas in which 27 each individual needs training. 28

l a. These multi-disciplinary evaluations shall be repeated for 2 all Plaintiff[s] [at] annual intervals, unless required more 3 frequently by each Plaintiff’s needs. 4 bee 5 2. Within 30 days of the completion of each Plaintiff’s 6 interdisciplinary evaluation, develop and implement a 7 professionally-based, individualized skills training and 8 support program for each Plaintiff. 9 C. The Defendants shall provide Plaintiffs with adequate, 10 appropriate and timely occupational therapy, physical therapy, ll speech therapy, or physical assistance support service[s] to meet 12 the individualized needs of Plaintiffs. 13 (Amended Permanent Injunction at § II.B-C.) 14 Plaintiffs contend that Defendants have not conducted annual evaluations of 15 || Plaintiff R.A. as required under § II.B.1.a. Specifically, they argue that no 16 evaluation was performed between November 2015 and June 2017. However, 17 Defendants have submitted multi-disciplinary evaluations of R.A. that were 18 conducted in April-May of 2016 and June of 2017. Accordingly, Plaintiffs have 19 || not shown by clear and convincing evidence that Defendants failed to conduct 20 annual evaluations of R.A. as required under the Amended Permanent Injunction. 21 Plaintiffs also contend the multi-disciplinary team that conducted R.A.’s 22 November 2015 evaluation did not include a psychiatrist, as required under § I.J.1. 23 There does not appear to be a psychiatrist’s signature on R.A.’s November 2015 24 evaluation, which supports a finding that no psychiatrist participated in that year’s 25 evaluation. However, the purpose of civil contempt is not to punish past 26 disobedience, but “to coerce the defendant into compliance with the court’s order, 27 and to compensate the complainant for losses sustained.” United States v. United 28 Mine Workers of Am.,

(1947). R.A.’s 2016 and 2017

1 evaluations do include a psychiatrist’s signature, and Plaintiffs have provided no 2 evidence showing that contempt sanctions are necessary to compel future 3 compliance with this provision of the Amended Permanent Injunction. Nor have 4 Plaintiffs presented any evidence of loss to R.A. resulting from the 2015 violation 5 that would require compensation. 6 Accordingly, any contempt sanction the Court would impose for the 2015 7 violation would simply constitute punishment for past disobedience. See, e.g., 8 Gompers v. Buck Stove & Range Co.,

(1911) (Where “the 9 disobedience is a thing accomplished[,] ... [contempt] operates, not as a remedy 10 coercive in its nature, but solely as punishment for the completed act of 11 disobedience.”); Int’! Union, United Mine Workers of Am. v. Bagwell,

821, 828 (1994) (contempt sanction “is punitive and criminal if it is imposed 13 retrospectively for a ‘completed act of disobedience’”) (quoting Gompers). Such 14 punishment falls outside the proper scope of civil contempt and requires 15 procedural protections beyond those available in civil proceedings. Bagwell, 512 16 U.S. at 826 (“Criminal contempt is a crime in the ordinary sense and criminal 17 penalties may not be imposed on someone who has not been afforded the 18 protections that the Constitution requires of such criminal proceedings.” (internal 19 quotations, citations omitted). 20 Plaintiffs have not demonstrated by clear and convincing evidence that 21 contempt sanctions are necessary to compel Defendants’ future compliance with 22 § I.J.1 of the Amended Permanent Injunction or to compensate R.A. for losses 23 sustained as a result of past non-compliance. Accordingly, Plaintiffs have not 24 established that the absence of a psychiatrist’s signature from R.A.’s 2015 annual 25 evaluation warrants civil contempt sanctions. 26 Finally, Plaintiffs argue that Defendants’ failure to provide a dedicated 27 speech therapist for R.A. constitutes a violation of the Amended Permanent 28 Injunction, which requires Defendants to “provide Plaintiffs with adequate,

l appropriate[,] and timely occupational therapy, physical therapy, speech therapy, 2 or physical assistance support service[s] to meet the individualized needs of 3 Plaintiffs.” (Amended Permanent Injunction at § II.C.) Although Defendants have 4 provided R.A. with speech therapy, it has been provided by a psychologist rather 5 than a dedicated speech therapist. Plaintiffs contend that any speech therapy 6 provided by R.A.’s psychologist is insufficient to meet R.A.’s individualized 7 needs. 8 Defendants have advised the Court that they are willing to have a speech 9 therapist evaluate R.A. to determine whether the services of a professional speech 10 therapist are necessary to meet R.A.’s individualized needs. The Court finds that 11 this information would be helpful in resolving Plaintiffs’ motion. Accordingly, 12 | Plaintiffs’ motion is hereby continued? pending Defendants’ submission of a report 13 evaluating R.A.’s need for the services of a professional speech therapist. 14 IV. CONCLUSION 15 Plaintiffs’ motion for an order to show cause why Defendants should not be 16 held in contempt “for failure to proceed forward in obtaining Joint Commission or 17 CMS accreditation” is DENIED. Plaintiffs’ motion for an order to show cause 18 why Defendants should not be held in contempt for failure to conduct annual 19 | reviews of R.A.’s treatment plan is DENIED. Plaintiffs’ motion for an order to 20 show cause why Defendants should not be held in contempt for failure to ensure 21 the participation of a psychiatrist in the 2015 annual evaluation of R.A.’s treatment 22 plan is DENIED. Plaintiffs’ motion for an order to show cause why Defendants 23 should not be held in contempt for failure to provide R.A. with adequate, 24 appropriate, and timely speech therapy to meet R.A.’s individualized needs is 25 26 27 2 The Court stated at the hearing on Plaintiffs’ motion that the matter would be taken under 28 advisement or submitted. However, because additional evidence is to be provided, the Court clarifies that the matter is continued rather than submitted.

1 CONTINUED pending Defendants’ submission of a speech therapist’s evaluation 2 of R.A. 3 4 IT IS SO ORDERED. 5 6 DATED: September 21, 2018 C2 7 8 CONSUELO B, MARSHALL 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28