Dunn et al v. Thomas et al

Filing 550

PHASE I OPINION AND ORDER ON NEED FOR APPOINTMENT OF GUARDIAN AD LITEM: it is ORDERED as follows: (1) The court will not appoint a guardian ad litem at this time in this litigation. (2) By no later than August 17, 2016, plaintiff Alabama Disabilities Advocacy Program is to file a brief setting forth in detail its position as to why the settlement agreement promotes the interests, and fairly resolves the claims, of prisoners with cognitive and communication- elated disabilities so severe that they would likely be unable to understand the terms of the agreement or submit intelligible comments on them. Signed by Honorable Judge Myron H. Thompson on 7/7/2016. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

JOSHUA DUNN, et al.,
Plaintiffs,
v.
JEFFERSON S. DUNN, in his
official capacity as
Commissioner of
the Alabama Department of
Corrections, et al.,
Defendants.

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CIVIL ACTION NO.
2:14cv601-MHT
(WO)

PHASE I OPINION AND ORDER ON NEED
FOR APPOINTMENT OF GUARDIAN AD LITEM
In

the

course

of

preliminarily

approving

the

settlement of the Phase 1 claims in this case, see
Phase

1

Prelim.

Approval

Order

(doc.

no.

532),

the

court ordered the parties to address “whether the court
should appoint a guardian ad litem [GAL] to represent
at the fairness hearing the interests of class members
who are incompetent or otherwise unable to understand
or comment on the terms of the settlement agreement.”
Phase 1 Suppl. Briefing Order (doc. no. 534) at 1-2.

The

parties

have

submitted

briefs,

both

taking

the

position that appointment of a GAL is not necessary.
The court agrees; this short opinion explains why.
Federal Rule of Civil Procedure 17(c) states that
“the court must appoint a guardian ad litem--or issue
another

appropriate

order--to

protect

a[n] ... incompetent person who is unrepresented in an
action.”

GALs have

traditionally

been appointed in

class actions involving the rights of institutionalized
people when concerns have arisen regarding the capacity
of named class representatives to protect adequately
the interests of unnamed class members.

See N.O. v.

Callahan, 110 F.R.D. 637, 648 (D. Mass. 1986) (Saris,
M.J.)

(citing

cases).

In

this

case,

there

is

no

suggestion that any of the named class representatives
in Phase 1 are incompetent or unable to advocate on
behalf of other prisoners with disabilities.
The

question

here

is,

instead,

whether

the

interests of those class members unable to comment will
be adequately represented at the hearing.

2

The court is

aware of no case law suggesting that a GAL cannot be
appointed
class

to

represent

members,

‘represented’
competent

even

by

the

interests

though

named

named

they

of

are

plaintiffs.

definitionally
A

plaintiffs

incompetent

finding

are

that

adequate

representatives--for purposes of Federal Rule of Civil
Procedure

23(a)(4)--of

a

class

that

includes

some

incompetent members is in no way inconsistent with a
finding that a GAL should be appointed to advise the
court as to whether those incompetent class members’
interests

will

settlement
23(a)(4)
fairness

fairly

agreement,

adequacy

served

just

does

hearing

members--though

be

as

not

at

by

a

‘represented’

in

proposed

finding

obviate
which

a

the

of

need

competent
one

sense

Rule
for

a

class
by

named

plaintiffs--can themselves be heard.
Although defendants contend, and the court has no
reason to doubt, that class counsel will “represent and
protect

the

interests

members ... who

may

of

[those]

have

mental

3

putative
or

class

cognitive

disabilities
appreciate

that

the

could

import

limit

of

the

their

ability

[settlement],”

to

Defs.’

Notice of Resp. (doc no. 531) at 1, there is authority
to suggest that appointment of an independent GAL who
“does

not

actively

litigation
afford

may

represent”

sometimes

unsophisticated

“additional

assurance

be

or

members

desirable

incompetent

that

adequately protected.”

class

their

in

in

the

order

class

interest

to

members
will

be

In re Asbestos Litig., 90 F.3d

963, 972 (5th Cir. 1996), judgment vacated on other
grounds

sub

nom.

Flanagan

v.

Ahearn,

521

U.S.

1114

(1997); see also N.O., 110 F.R.D. at 650 (raising the
“concern” that the proposed GAL had been “inextricably
involved
therefore
attorney

in

the

“serve
than

as

prosecution
more
a

in

of”
the

next

the

case

capacity

friend

of

the

and
of

would

another

attorney’s

clients”); but see Institutionalized Juveniles v. Sec’y
of Pub. Welfare, 758 F.2d 897, 925-26 (3d Cir. 1985)
(explaining that class counsel was appointed

by the

court to serve as a GAL and that “[t]his status was

4

conferred upon him to facilitate his communication with
class members who were institutionalized and sometimes
suffering from disabilities ... [and] not intended to
confer

additional

duties

upon

obligations as class counsel”).

him

beyond

his

In some instances,

then, appointment of a GAL might be warranted to ensure
that members of a class unable to speak for themselves
have a wholly independent mouthpiece, and that their
particular
court’s
duty’

concerns

are

consideration
toward

absent

presented

in

squarely

fulfilling

class

its

members.”

for

the

“‘fiduciary
William

B.

Rubenstein, Newburg on Class Actions § 13:40 (5th ed.)
(discussing the appointment of adjuncts to assist the
court in assessing the fairness of a class settlement).
Plaintiffs

point

out

that

this

court

did

not

appoint a GAL to represent incompetent class members in
a previous class action challenge regarding the State’s
mental health and mental retardation system.

However,

the court then explained, in line with its reasoning in
this

opinion,

that

“a

court

5

should

be

even

more

circumspect

about

members

the

of

accepting

plaintiff

a

settlement

class

are

where

not

...

themselves

capable of assessing the settlement and voicing their
views on whether it is fair, reasonable and adequate,
and the court must therefore rely on comments from such
secondary

sources

organizations”;
such

input

in

settlement.

as

indeed,

public
the

interest

groups

relied

whether

deciding

court

to

and

heavily
approve

on
the

Wyatt ex rel. Rawlins v. Wallis, 1986 WL

69194, at *3 (M.D. Ala. Sept. 22, 1986) (Thompson, J.);
see also William B. Rubenstein, The Fairness Hearing:
Adversarial and Regulatory Approaches, 53 UCLA L. Rev.
1435, 1450-52 (2006) (discussing the related roles that
public
can

interest

play

in

groups

and

monitoring

court-appointed
the

fairness

guardians
of

class

settlements).
That said, this

is something of a

special case

because of the involvement of the Alabama Disabilities
Advocacy

Program

(ADAP),

Alabama’s

protection and advocacy organization (P&A).

6

designated
Under

federal law, P&As are afforded extensive investigatory
and oversight powers, and also “have the authority to
pursue

legal,

administrative,

and

other

appropriate

remedies or approaches to ensure the protection of, and
advocacy for, the rights of such individuals within the
State”

with

disabilities.

29

U.S.C.

generally);

see

also

(disabilities

§ 15043(a)(2)(A)(i)
disabilities);

(covering

42

mental illness).

U.S.C.

§ 794e(f)(3)
42

U.S.C.

developmental

§ 10805(a)(1)(B)

(covering

In furtherance of its mandate, ADAP

is a plaintiff in this case, and also serves as counsel
to the individual named plaintiffs.
court

grants

agreement,

ADAP

implementation.

final
will
See

approval
be

tasked

Settlement

Moreover, if the

of

the

with

settlement

monitoring

Agreement

(doc.

its
no.

518) at 69-70.
Although it is an advocacy organization, ADAP does
have a role separate from that of a GAL--indeed, the
statutes

empowering

P&As

at

times

require

them

to

obtain consent from the “legal guardian, conservator,

7

or

other

legal

representative”

of

a

person

with

a

disability in order to obtain access to his records.
See 29 U.S.C. § 794e(f)(2); 42 U.S.C. § 15043(a)(2)(I);
42 U.S.C. § 10805(a)(4).
But

this

concludes
placed

formal

that,

to

distinction

practically

understand,

vigorously

for,

the

aside,

speaking,

of

court

ADAP

is

and

articulate,
needs

the

best

advocate

prisoners

with

disabilities that make it difficult or impossible for
them to advocate for themselves.

As plaintiffs note,

it would be extremely difficult for a GAL to consult
with

those

understand

prisoners
or

comment

with
on

disabilities

the

settlement

unable

to

agreement,

because one of the very problems to be ameliorated by
the settlement agreement is the Alabama Department of
Corrections’ present failure adequately to identify and
track prisoners with disabilities.

Given this reality,

ADAP’s close familiarity with the particular needs of
incarcerated

people

with

disabilities

will

prove

critical in enabling it to explain to the court whether

8

the settlement agreement is fair with respect to the
class members at issue, and to respond meaningfully to
any questions or concerns that may arise.
In sum, the court concludes that appointment of a
GAL is not necessary in light of ADAP’s participation
in this litigation.

However, the court will instruct

ADAP that it is to file a brief setting forth in detail
its

position

as

to

why

the

settlement

agreement

promotes the interests, and fairly resolves the claims,
of prisoners with cognitive and communication-related
disabilities so severe that they would likely be unable
to

understand

the

terms

of

the

agreement

or

submit

intelligible comments on them.

***
Accordingly, it is ORDERED as follows:
(1) The court will not appoint a guardian ad litem
at this time in this litigation.
(2) By no later than August 17, 2016, plaintiff
Alabama

Disabilities

Advocacy

9

Program

is

to

file

a

brief setting forth in detail its position as to why
the settlement agreement promotes the interests, and
fairly resolves the claims, of prisoners with cognitive
and communication-related disabilities so severe that
they would likely be unable to understand the terms of
the agreement or submit intelligible comments on them.
DONE, this the 7th day of July, 2016.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE