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Tellis v. LeBlanc

United States District Court, W.D. Louisiana, Shreveport Division

March 8, 2019

ANTHONY TELLIS, ET AL.
v.
JAMES M. LEBLANC, ET AL.

          HORNSBY MAGISTRATE JUDGE

          MEMORANDUM RULING

          EIJZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE.

         Before the Court are Plaintiffs' motion for a temporary restraining order and preliminary injunction, [Record Document 142], and Defendants' motion to approve communication with members of the proposed class, [Record Document 139]. For the reasons given below, IT IS ORDERED that Defendants are to provide Plaintiffs' counsel with reasonable opportunity to conduct confidential interviews with members of the proposed class. As a result of this order, Plaintiffs' motion for a preliminary injunction, [Record Document 142], is DENIED AS MOOT. Defendants' motion, [Record Document 139], is also GRANTED; defense counsel may speak with inmates who are not currently represented by Plaintiffs' counsel, subject to the prophylactic guidelines described below.

         I. Plaintiffs' Counsel's Access to Members of the Proposed Class

         Plaintiffs seek a temporary restraining order and preliminary injunction allowing Plaintiffs' counsel to interview the named plaintiffs as well as other inmates at David Wade Correctional Center fDWCC"). [Record Document 142]. Although the parties have reported to the Court that they have resolved their dispute regarding the ten inmates whose interviews were the subject of the motion, the parties have also alerted the Court that they continue to dispute the access Plaintiffs' counsel may have to members of the proposed class.

         At the outset, the Court observes that a preliminary injunction is not the ideal procedural vehicle for the relief Plaintiffs seek. Although the amended complaint alleges certain kinds of interference with what inmates can bring to attorney meetings, it does not allege that Defendants are preventing these meetings entirely. [Record Document 154 at 45, 53]. The absence of this allegation in an otherwise detailed complaint suggests that the specific issue raised by Plaintiffs' motion-the availability of in-person interviews with counsel-is not necessarily connected to the merits of this litigation.[1]

         In order to control the progress of a class action, Rule 23(d) of the Federal Rules of Civil Procedure authorizes a district court to "enter whatever orders are necessary to the conduct of the action." In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1102 (5th Or. 1977) (citing Gordon v. E. Air Lines, Inc., 549 F.2d 1006, 1012 n.8 (5th Cir. 1977); Calhoun v. Cook, 469 F.2d 1067 (5th Cir. 1972)). This action has been pending for over a year, and a hearing on class certification is set for October 15, 2019. Actions by either party that invite additional delay interfere with the "just, speedy, and inexpensive determination" of the merits of this action. Fed.R.Civ.P. 1. As a result, the Court finds that the interests of justice are best served by allowing Plaintiffs' counsel reasonable access for in-person confidential interviews with members of the proposed class.

         Several unique features of this litigation support this Court's conclusion. First, inmates in the proposed class have a First Amendment right to a "reasonable opportunity to seek and receive the assistance of attorneys. Regulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid." Procunier v. Martinez, 416 U.S. 396, 419 (1974) (citing Ex parte Hull, 312 U.S. 546 (1941)), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 410 (1989). This Court acknowledges that the named plaintiffs may lack standing to raise the claims of other members of the proposed class. Nevertheless, given the procedural posture of this case, this Court feels that it must give some weight to the interests of members of the proposed class.

         Second, the Magistrate Judge has granted Plaintiffs' motion to amend the complaint to add the Advocacy Center as a plaintiff. [Record Document 153]. Although the amendment is the subject of a pending appeal, [Record Document 157], the Advocacy Center is currently a party to this litigation. The Advocacy Center is the protection and advocacy ("P&A") agency for Louisiana. P&A agencies have a statutory mandate to investigate conditions at facilities that house the mentally ill. 42 U.S.C. §§ 10802(3), 10805(a). Federal regulations enforce this mandate by allowing P&A agencies "reasonable unaccompanied access to public . . . facilities . . . which render care or treatment for individuals with mental illness ... and ... . reasonable unaccompanied access to residents at all times necessary to conduct a full investigation of an incident of abuse or neglect," 42 C.F.R. § 51.42(b); these facilities include prisons, id. § 51.2. Hence, the Advocacy Center has a right to access DWCC inmates. However, DWCC and the Advocacy Center have previously entered into a settlement agreement in the Middle District of Louisiana regarding the Advocacy Center's access to the prison. This Court does not intend to interfere with any resolution of disputes under that agreement. Instead, this Court merely wishes to note the existence of authority for the Advocacy Center to access individual inmates who may be members of the proposed class.

         Characteristics of the members of the proposed class also weigh in favor of allowing Plaintiffs' counsel in-person interviews. Because the members of the prospective class are all incarcerated, Plaintiffs' counsel has no means of accessing them except with Defendants' cooperation. Although Defendants assert that mail is an effective substitute for in-person visits, [Record Document 145 at 13-14], Plaintiffs have pointed out various characteristics of their clients or prospective clients that render mail an ineffective substitute for in-person meetings, including the literacy level of many inmates, [Record Document 142-1 at 9]. The Court also notes that the inmates who are the subject of this litigation are mentally ill, a circumstance that not infrequently contributes to difficulties in communication.

         Finally, Plaintiffs represent that in-person attorney visits have been conducted at DWCC for nearly two years without incident. [Id]. Defendants do not dispute that, until recently, they have been providing the access that they are now denying. They have pointed to no change in circumstances at DWCC that would support a need to curtail visits that have been going on for some time. This, in turn, suggests that there is no strong penological interest in preventing reasonable in-person visits of Plaintiffs' counsel with members of the prospective class.

         Therefore, IT IS ORDERED that Defendants are to allow Plaintiffs' counsel reasonable access to confidential interviews with members of the proposed class. In light of this order, Plaintiffs' motion for a preliminary injunction [Record Document 142] is DENIED AS MOOT. If the requests for interviews become unreasonable in number, duration, or frequency, Defendants may raise that issue in a subsequent motion.

         II. Defendants7 Communication with Members of the Proposed Class Defendants have moved for permission to communicate with unrepresented members of the proposed class. [Record Document 139]. The parties have represented to the Court that Plaintiffs' counsel claims to have an attorney-client relationship with 310 DWCC inmates.

         Prior to class certification, defendants have a right to speak with unrepresented class members. Fed. Judicial Ctr., Manual for Complex Litigation, Fourth § 21.12 (2004) (citing Gulf Oil Co. v. Bernard, 452 U.S. 89, 95 (1981)) ("Defendants and their counsel generally may communicate with potential class members in the ordinary course of business . . . ."); see also Gulf Oil, 452 U.S. at 100 (finding that a ban on communication between counsel for a party and members of a proposed class without prior court approval was an abuse of discretion absent findings warranting the restraint on expression). However, ethical rules prohibit defense counsel from speaking directly with named plaintiffs. See La. R. Prof'l Conduct 4.2.

         Rule 4.2 of the Louisiana Rules of Professional Conduct provides that an attorney may not speak with a "person the lawyer knows to be represented by another lawyer in the matter." Id. Members of the proposed class, even those with present attorney-client relationships with Plaintiffs' counsel, are technically not parties "in the matter" at the moment. However, if the class is certified, then these putative class members with whom Plaintiffs' counsel has a present attorney-client relationship will become parties to this matter. In accord with the spirit of Rule 4.2, the Court concludes that defense counsel may not speak with members of the proposed class with whom the Advocacy Center currently has an attorney-client relationship.

         Thus, to allow Defendants and their counsel to exercise their right to communicate with members of the proposed class, they must have some way to determine who is currently represented. Therefore, IT IS ORDERED that by March 15, 2019 Plaintiffs' counsel provide defense counsel with a list of inmates with whom a present (not prospective) attorney-client relationship exists.

         The Court will offer a few observations to assist the parties in determining who is presently represented by Plaintiffs' counsel. First of all, the Court finds it somewhat difficult to believe that Plaintiffs' counsel has a present attorney-client relationship with 310 different inmates. Plaintiffs appear to be confusing the existence of a privilege with the existence of an attorney-client relationship. If an inmate has spoken with or written to Plaintiffs' counsel as a prospective client, then ...


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