United States District Court, W.D. Louisiana, Shreveport Division
ANTHONY TELLIS, ET AL.
JAMES M. LEBLANC, ET AL.
HORNSBY MAGISTRATE JUDGE
EIJZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE.
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.
Plaintiffs' Counsel's Access to Members of the
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
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
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.
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.
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.
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.
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.
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
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.
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.
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
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
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 ...