Free Motion to Intervene - District Court of Colorado - Colorado

Case 1:02-cv-00651-RPM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02-cv-0651-RPM-MJW MARK SHOOK and DENNIS JONES, on behalf of themselves and all others similarly situated, Plaintiffs, and JAMES VAUGHAN, SHIRLEN MOSBY, THOMAS REINIG, and LOTTIE ELLIOTT, Intervenor-Plaintiffs, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO and TERRY MAKETA, in his official capacity as Sheriff of El Paso County, Defendants. UNOPPOSED MOTION FOR LEAVE TO INTERVENE AND FOR JOINDER IN MOTION FOR CLASS CERTIFICATION

Victor Siegrist moves pursuant to Rule 24, Fed.R.Civ.P., for leave to intervene in this action as a party plaintiff and class representative, and to join in the Motion for Class Certification and Supporting Authorities, filed June 17, 2005. Leave is sought as of right under Rule 24(a) and permissively, under Rule 24(b). This motion is accompanied by a proposed Class Action Complaint in Intervention, attached hereto, which sets forth the claims for which intervention is sought. The grounds for this motion are as follows:

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In the original Class Action Complaint for Declaratory and Injunctive Relief, the plaintiffs challenged the adequacy of mental health services provided by the defendants in the El Paso County Jail ("Jail"). See Paragraphs 1-2 of the proposed Class Action Complaint in Intervention attached hereto. Intervenor-Plaintiff Victor Siegrist is currently incarcerated in the El Paso County Jail. He has been harmed by the same constitutional violations at the Jail as the original plaintiffs, and is exposed to the same risks of harm from defendants' deliberately indifferent actions and inactions. He has similar, indeed largely identical, claims to those of the existing plaintiffs, based on the ongoing deliberate indifference and failure to act by the defendants. He joins the Motion for Class Certification and seeks to be named as an additional class representative.1 1. Intervention as of Right

Rule 24(a) provides: Upon timely application, anyone shall be permitted to intervene in an action: . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. The movant easily satisfies the requirements of this rule.

With respect to the Motion to Intervene and for Joinder in Motion to Certify Class filed by Shirlen Mosby and James Vaughan on July 26, 2002, this Court, by minute order dated January 15, 2003, allowed intervention for the limited purpose of determining class certification. On April 1, 2005, the Court granted the motion to intervene filed by Thomas Reinig and Lottie Elliott. 2

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a.

Intervenor-Plaintiff Has a Direct, Substantial and Legally Protectable Interest in the Provision of Mental Health Services in the El Paso County Jail.

The Tenth Circuit requires that an intervenor's "interest in the proceedings be `direct, substantial, and legally protectable.'" Coalition of Arizona/New Mexico Counties for Stable Economic Growth v. Department of the Interior, 100 F.3d 837, 840 (10th Cir. 1996). In addition, the Tenth Circuit has explained that the "`interest' test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process." Id. (quoting Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967)). The intervenor clearly has a direct, substantial, and legally protectable interest in the proceedings. He is a members of the putative class and a current prisoner in the El Paso County Jail. As a current prisoner he faces an immediate and substantial threat that he will be harmed by the constitutional violations specified in the Complaint. In addition, the interests of the intervenor-plaintiff are legally protectable. The original Complaint challenges ongoing patterns, practices and customs regarding the provision of mental health services in the El Paso County Jail. Intervenor-Plaintiff also seeks to join as a class representative. With respect to suits over conditions in a detention facility, by any imaginable yardstick, the detainees have a direct, substantial, legally protectable interest in the lawsuit challenging the operations of [the facility] and are asserting legal rights of their own. Chiles v. Thornburgh, 865 F.2d 1197, 1214 (11th Cir. 1989).

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b.

If Intervenor-Plaintiff Is Not Permitted to Intervene His Interests May Be Impaired and Impeded.

According to Fed.R.Civ.P. 24(a)(2), the intervenor must show that the disposition of this action without his participation may impair or impede his interests. However, "the impairment or impediment need not be `of a strictly legal nature.'" Coalition of Arizona/New Mexico, 100 F.3d at 844 (citing Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Comm'n, 578 F.2d 1341, 1345 (10th Cir. 1978)). Any significant impediment, even the stare decisis effect of a district court's judgment, constitutes sufficient impairment to justify intervention as of right. Coalition of Arizona/New Mexico, 100 F.3d at 844. In this case, the intervenor seeks to intervene as a named plaintiff in a class action in which he is already a member of the putative class. If the case were to be decided against the class, all claims of intervenor might be barred, and would certainly be weakened. Potential impairment is definitely present. c. Intervenor-Plaintiff's Interests May Not Be Adequately Represented by The Existing Parties to the Action.

"Under Rule 24(a), members of a class have a right to intervene if their interests are not adequately represented by existing parties." Newberg On Class Actions, § 16.07 at 16-39 to 1640 (3d ed. 1992). Indeed, Fed.R.Civ.P. 23(d)(2) specifically states that in any class action the court may provide the absentee class members an opportunity "to intervene and present claims or defenses, or otherwise to come into the action." Fed.R.Civ.P. 23(d)(2).2 Given the fluid nature of the jail population generally, any given class representative might not be able or willing to A suit brought as a class action may be treated as such, even though class certification has not yet been granted, at least for purposes of dismissal or settlement. Kahan v. Rosenstiel, 424 F.2d 161, 169 (3d Cir. 1970); see also, Nelson v. United Credit Plan, Inc., 77 F.R.D. 54, 56 (E.D. La. 1978) (if class certification is delayed, putative class may be treated as such).
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proceed. Intervention of an additional class representative in a class action makes it more likely that the class will continue to be adequately represented by an appropriate class representative. United Airlines v. McDonald, 432 U.S. 385, 394 (1977). Moreover, in this Circuit, the burden of showing inadequate representation is "the minimal one of showing that representation `may' be inadequate." Utah Ass'n of Counties v. Clinton, 255 F.3d 1246, 1254 (10th Cir. 2001).3 As the court noted in LaReau v. Manson, 383 F. Supp. 214 (D. Conn. 1974), intervention to preserve and prosecute a class action is particularly appropriate where constitutional challenges to prison conditions are alleged. Id. at 218; see also Lynch v. Baxley, 651 F.2d 387, 388 (5th Cir. 1981) (intervention as named plaintiff should have been permitted in class action to ensure that challenge to constitutionality of involuntary commitment statute remained live); Nichols v. Schubert, 71 F.R.D. 578, 582 (E.D. Wis. 1976) (in putative class action challenging visiting privileges at state mental hospital, current resident permitted to intervene as class representative to preserve class action status after previous class representative had been transferred out of hospital; intervention to keep claim live was appropriate particularly where "it is within power of defendant to moot the named plaintiff's claim" by transferring the plaintiff to a different facility). 2. Permissive Intervention

Rule 24(b) provides: Upon timely application, anyone may be permitted to intervene in an action: . . . (2) when an applicant's claims or defense and the main action have a question of law or fact in common. Defendants have explicitly argued that the existing named plaintiffs do not adequately represent the class. See Response in Opposition to Motion to Certify Class, May 13, 2002, at 9 ("the adequacy of representation requirement of F.R.C.P. 23(a)(4) is not met by plaintiffs in this case;" "[t]he named Plaintiffs are not representative of the proposed class members"). 5
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These elements ­ timeliness and a common question of law or fact ­ are indisputably present. a. Timeliness.

When assessing timeliness, "delay is generally examined in terms of what stage the trial proceedings have reached, the impact of the delay on the litigation, and the reasons for the delay, rather than the length of time during which intervention could have occurred." Newberg On Class Actions, § 16.08 at 16-51, 16-53 (3d ed. 1992). Following the Tenth Circuit's reversal of this Court's dismissal, this case has just begun anew in this Court. No scheduling conference has been set, no discovery has taken place, and Rule 26(a)(1) disclosures have not yet been required. No possible prejudice to the defendants exists. The request to intervene is plainly timely. b. Common questions of law or fact.

There can be no question that there are common questions of both law and fact. The challenged actions and inactions of the defendants are essentially the same for the original plaintiffs, this intervenor, and the entire class. Furthermore, the legal bases for these new claims are identical to those in the original Complaint. All legal questions are common ones. Professor Moore states: "A common question of law or fact routinely exists if the intervenor has a claim against the defendant that is identical to a claim asserted by the existing plaintiff. Such a situation is particularly likely to arise in the context of a class action." 6 Moore, Federal Practice, § 24.11 at 24-62 (3d ed. 2002). See also Newberg On Class Actions, § 16.08 at 16-47, 16-49 (3d ed. 1992) ("[c]ourts appear to be particularly amenable to permissive intervention when no new additional issues are presented to the case, when the intervenor's claims are

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`virtually identical' to class claims, and when intervention would strengthen the adequacy of representation."). Given that the Tenth Circuit follows "a somewhat liberal line in allowing interventions," Utah Ass'n of Counties v. Clinton, 255 F.3d 1246, 1251 (10th Cir. 2001), intervention should clearly be allowed. Rule 7.1 Certificate Pursuant to D.C.Colo.L.Civ.R. 7.1, Mark Silverstein, counsel for Intervenor-Plaintiff, conferred with Gordon Vaughan, counsel for defendants, with respect to this motion. Mr. Vaughan advised that, unless he contacted Mr. Silverstein by the close of business on March 16, 2006, he would not oppose the motion. No such contact was received.

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Respectfully submitted March 17, 2006. David C. Fathi Senior Staff Counsel The National Prison Project of the ACLU Foundation, Inc. 915 15th Street NW, 7th Floor Washington, D.C. 20005 Telephone: (202) 548-6609 E-mail: [email protected] Mark Silverstein Legal Director American Civil Liberties Union of Colorado 400 Corona Street Denver, Colorado 80218 Telephone: (303) 777-5482 E-mail: [email protected]

s/ Thomas S. Nichols Thomas S. Nichols DAVIS GRAHAM & STUBBS LLP In cooperation with the American Civil Liberties Union Foundation of Colorado 1550 Seventeenth Street, Suite 500 Denver, Colorado 80202 DC BOX 03 Telephone: (303) 892-9400 FAX: (303) 893-1379 E-mail: [email protected] Attorneys for Plaintiffs and Intervenor-Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on this 17th day of March, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Gordon L. Vaughan [email protected] Jay Allen Lauer [email protected] David C. Fathi [email protected] Mark Silverstein [email protected]

s/ Thomas S. Nichols Thomas S. Nichols Attorneys for Plaintiffs and Intervenor-Plaintiffs DAVIS GRAHAM & STUBBS LLP In cooperation with the American Civil Liberties Union Foundation of Colorado 1550 Seventeenth Street, Suite 500 Denver, Colorado 80202 DC BOX 03 Telephone: (303) 892-9400 FAX: (303) 893-1379 E-mail: [email protected]