GUMM v. JACOBS et al

Filing 258

ORDER DENYING 228 Motion to Intervene by Jeffrey Bourassa. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 5/10/2019. (kat)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TIMOTHY GUMM, et al.,
Plaintiffs,
v.
RICK JACOBS, et al.,
Defendants.
__________________

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CIVIL ACTION NO. 5:15-cv-41 (MTT)

ORDER
Jeffrey Bourassa moves to intervene as of right or, in the alternative,
permissively. For the following reasons, that motion (Doc. 228) is DENIED.
I. BACKGROUND
Bourassa states that in April 2016 he was placed in the Tier III Program in the
Special Management Unit (“SMU”) at the Georgia Diagnostic & Classification Prison
(“GDCP”). Id. at 1. He was transferred out of Tier III and to a different prison in June
2016, and he was returned to the GDCP Tier III on March 6, 2018. Id. at 2, 5. On
March 14, 2018, he was transferred to federal custody to await trial on a RICO charge.
Id. at 4-5. He notes that although he “is a class member in that he is currently assigned
to GDCP/SMU/Tier III” and claims he will be returning there, he has not been provided
notice of the proposed Settlement Agreement. Id. at 6. Movant Bourassa therefore
“objects to any proposed settlement agreement unless and until he is both served with
proper notice” and a copy of the Settlement Agreement “and has an opportunity to be
heard in response to said Settlement Agreement.” Id. at 7. However, Bourassa also
admits that he “has since obtained access to the proposed Settlement Agreement.” Id.

The Court also notes that it has certified a class of “all persons who are or in the future
will be assigned to the facility currently known as the Special Management Unit at
Georgia Diagnostic & Classification Prison, or who are or in the future will be assigned
to the Tier III Program.” Doc. 256 at 28. Bourassa, who has been in federal custody for
over a year but could conceivably return to the SMU, is a potential future class member.
Doc. 248 at 6. Depending on the outcome of his federal trial, he may or may not return
to the Georgia Diagnostic & Classification Prison; if he does return, he may or may not
be assigned to Tier III. Doc. 252 at 14-15. Despite that attenuated and uncertain
connection to the Tier III program, class counsel treat him as a class member for the
purposes of this motion. Doc. 252 at 6.
II. DISCUSSION
Rule 24(a) of the Federal Rules of Civil Procedure allows, in certain situations,
for intervention as of right, and Rule 24(b) allows for permissive intervention in the
Court’s discretion. Both Rule 24(a) and Rule 24(b) require that a motion to intervene be
“timely,” so the Court addresses timeliness first. See NAACP v. New York, 413 U.S.
345, 365 (1973).
A. Timeliness
“A district court must consider four factors in assessing timeliness, namely (1) the
length of time during which the would-be intervenor knew or reasonably should have
known of his interest in the case before he petitioned for leave to intervene; (2) the
extent of prejudice to the existing parties as a result of the would-be intervenor's failure
to apply as soon as he knew or reasonably should have known of his interest; (3) the
extent of prejudice to the would-be intervenor if his petition is denied; and (4) the
existence of unusual circumstances militating either for or against a determination that

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the application is timely.” United States v. Jefferson Cty., 720 F.2d 1511, 1516 (11th
Cir. 1983).
As to the first factor, it is unclear when Bourassa knew or should have known of
his interest in the case. He claims that he spent approximately two months in the SMU
in April 2016 to June 2016 and approximately a week in the SMU in March 2018. Doc.
228 at 1-5. He claims he first learned of this case on February 26, 2019, and there is no
indication that he should have known of his interest in the litigation before then. Doc.
228 at 9. He moved to intervene relatively promptly: the Court received his motion to
intervene on March 25, 2019. Doc. 228 at 1. The first factor, therefore, supports a
finding of timeliness. As to the second factor, Bourassa moved to intervene not long
after learning of his interest in the litigation, so the existing parties would not be
prejudiced by any delay in Bourassa’s moving to intervene. As to the third factor, there
is minimal prejudice to Bourassa if his motion is denied, because he was able to file
objections, which were fully considered by the Court. Docs. 227, 256 at 22-23. Also, as
discussed in more detail below, the representative plaintiffs have an interest identical to
Bourassa’s, and so he will not be prejudiced if his motion is denied. See Jefferson Cty.,
720 F.2d at 1517 (noting that courts will “find no prejudice sufficient to give weight to the
third factor” when a putative intervenor has interests identical to those of a party). As to
the fourth factor, there are no unusual circumstances concerning the timing of
Bourassa’s motion. Considering all the circumstances, Bourassa’s motion is timely.
B. Intervention as of Right
Rule 24(a)(1) allows intervention when the putative intervenor is “given an
unconditional right to intervene by a federal statute,” but Bourassa has not pointed to
any statute conferring an unconditional right to intervene in this case. Rule 24(a)(2)
allows intervention as of right when the putative intervenor “claims an interest relating to
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the property or transaction that is the subject of the action, and is so situated that
disposing of the action may as a practical matter impair or impede the movant's ability to
protect its interest, unless existing parties adequately represent that interest.”
To intervene as of right, therefore, a movant must satisfy four requirements: “(1)
his application to intervene is timely; (2) he has an interest relating to the property or
transaction which is the subject of the action; (3) he is so situated that disposition of the
action, as a practical matter, may impede or impair his ability to protect that interest; and
(4) his interest is represented inadequately by the existing parties to the suit.” Purcell v.
BankAtlantic Fin. Corp., 85 F.3d 1508, 1512 (11th Cir. 1996). As discussed above,
Bourassa’s motion is timely. Further, although Bourassa’s connection to Tier III is
attenuated and uncertain, the Court will assume, for the purposes of resolving this
motion, that he satisfies the second and third requirements. 1
However, Bourassa cannot satisfy the fourth requirement for intervention as of
right: demonstrating that his interest—that is, his speculation that he may return to Tier
III—is inadequately represented by the existing parties. See Purcell, 85 F.3d at 1512.
Generally, the intervenor will satisfy this requirement "unless it is clear that [the current
parties] will provide adequate representation.” Chiles v. Thornburgh, 865 F.2d 1197,
1214 (11th Cir. 1989). Although the movant’s burden to demonstrate inadequacy is “not
onerous,” the movant still “must produce something more than speculation as to the
purported inadequacy.” Aref v. Holder, 774 F. Supp. 2d 147, 172 (D.D.C. 2011)
(quotation marks omitted) (citing Moosehead Sanitary Dist. v. S.G. Phillips Corp., 610
F.2d 49, 54 (1st Cir.1979); Dimond v. Dist. of Columbia, 792 F.2d 179, 192
(D.C.Cir.1986)). On the other hand, “[w]hen the party seeking intervention has the

1

That assumption is generous to a fault. Potential future class members include virtually any male,
whether currently incarcerated or not, who could transgress in a way that could lead him to Tier III.

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same ultimate objective as a party to the suit, a presumption arises that its interests are
adequately represented, against which the petitioner must demonstrate adversity of
interest, collusion, or nonfeasance.” Int'l Tank Terminals, Ltd. v. M/V Acadia Forest,
579 F.2d 964, 967 (5th Cir. 1978). 2
Bourassa argues that class representation is inadequate because class counsel
are sacrificing his speculative interests to further the interests of other class members.
Specifically, he objects to Paragraph 44 of the Settlement Agreement, which allows the
Defendants to keep an inmate in Tier III for longer than two years if, among other
conditions, “(5) the inmate’s crime was so egregious that the person was placed in the
Tier III Program immediately upon being placed in GDC custody; or (6) the inmate, due
to his unique position of influence and authority over others, poses such an exceptional,
credible, and articulable risk to the safe operation of the prison system or to the public
that no facility other than the Tier III Program facility is sufficient to contain the risk.”
Docs. 256-1; 248 at 9. Bourassa, however, does not provide any allegations indicating
why those provisions would disadvantage him relative to the representative plaintiffs or
the class as a whole.
In fact, Bourassa’s own allegations undermine any claim that his interests in
limitations on long-term confinement are any stronger than the interests of other class
members. It does not appear Bourassa was transferred to the SMU Tier III until April
2016, after he had already been incarcerated at Georgia State Prison. Doc. 228 at 1.
Accordingly, category (5) of Paragraph 44 does not apply to him.
As to category (6), Bourassa gives no reason why he is any more likely than
other prisoners to be placed in that category. In fact, his allegations indicate he was

2

The Eleventh Circuit has adopted as binding precedent the decisions of the former Fifth Circuit rendered
prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

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assigned to the SMU for approximately two months in 2016, after which time he was
transferred to Tier II at Hays State Prison. Doc. 228 at 2. He was again placed in Tier
III for a period of eight days in March 2018, before he was transferred to federal pre-trial
custody. Id. at 4-5. He makes no allegation he was considered especially dangerous to
other inmates or to the public, or that he has influence or authority over others.
Bourassa, therefore, has not indicated he is any more likely than the named Plaintiffs or
any other member of the class to be burdened by Paragraph 44. Again, based on his
prior classifications, he is, if anything, less likely than other class members to be placed
in category (6) by GDC officials, as he has not, in the past, even been placed in Tier III
for any extended period of time. It is additionally uncertain (1) whether he will be
returning to GDC custody at all, (2) if so, whether he would be placed in Tier III, and (3)
if he were placed in Tier III, whether he would be held for more than 24 months.
Accordingly, although the Court carefully considers his argument that his interests are
inadequately represented, that argument is ultimately conclusory and is undermined by
the facts which he alleges.
The representative Plaintiffs have adequate incentive to pursue a settlement
which limits long-term confinement in the SMU. According to class counsel, Plaintiff
Gumm was in the SMU for seven years. Doc. 252 at 7. Plaintiff Watkins was assigned
to the SMU on July 27, 2009 and has remained there ever since. Docs. 140 ¶¶ 47, 50.
And the representative Plaintiffs have, in fact, negotiated favorable settlement terms
which limit long-term confinement. Class counsel explained the process behind the
negotiation of the Agreement’s 24-month cap, with limited exceptions for security:
In light of the law that we have, Plaintiffs assessment is that we have
done—we have made the best—after a period of considered judgment on
this issue and a protracted back-and-forth negotiation, we arrived at a
settlement Agreement that adds significant procedural protections to the
process by which people are evaluated for how long they stay in the SMU.
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Doc. 252 at 7-8. The procedural protections provide inmates assigned to the SMU for
longer than 24 months “quarterly review by a panel composed of the Director of Field
Operations, the Statewide Mental Health Director, the Statewide Medical Director, and a
member of the Office of Legal Services.” Doc. 256-1 ¶ 45. That represents an
excellent outcome for the class, and there is no indication that the class counsel could
have advocated more vigorously or achieved a better outcome regarding long-term
confinement. 3 Bourassa also makes a conclusory argument that he could obtain a
better result by going to trial. Doc. 248 at 10. But he does not provide any arguments
or authority supporting that claim, and the Court believes that class counsel is better
able to evaluate the relative advantages and disadvantages of settling or going to trial,
and to make litigation decisions on the basis of that evaluation, than Bourassa. See 3
Newberg on Class Actions, § 9:35 (5th ed.) (“Ordinarily . . . a mere difference in
preferred litigation tactics or strategy will be insufficient to show inadequate
representation”) (citing Jenkins by Jenkins v. State of Mo., 78 F.3d 1270, 1275 (8th Cir.
1996)). The Court additionally believes, based on its own independent review, that the
Settlement Agreement is a fair, adequate, and reasonable outcome for the class
members. See Docs. 210; 256.

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The Court further notes that an absolute 24-month cap of the sort Bourassa advocates would prevent
the Defendants from confining certain inmates in the SMU no matter the security risk posed. In practice,
that would require the Defendants to either create a new housing unit with a security level equal to that of
the SMU to house high-security inmates or to place them in lower-security housing and risk compromising
prison security. The former would be of dubious benefit to the class members, and the Defendants likely
would not have agreed to the latter. And any relief which compromises security would potentially raise
issues under 18 U.S.C. § 3626(a), which prevents the Court from approving the relief provided by the
Settlement Agreement unless the Court finds such relief “is the least intrusive means necessary to correct
the violation of the Federal right” and requires the Court, in making that inquiry, to “give substantial weight
to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.”
18 U.S.C. § 3626.

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In short, the representative Plaintiffs have the “same ultimate objective” as
Bourassa regarding conditions of confinement in Tier III, and they have at least as
strong an interest as Bourassa in pursuing limitations on long-term confinement in Tier
III. Int'l Tank Terminals, 579 F.2d at 967. Accordingly, “a presumption arises that
[Bourassa’s] interests are adequately represented.” Id. The Settlement Agreement,
which provides favorable relief for the class, including limitations on long-term
confinement in the SMU, supports that presumption. Bourassa has not
“demonstrated”—nor, apart from the conclusory allegations regarding Paragraph 44,
has even argued—that there is “adversity of interest, collusion, or nonfeasance.” Id.
His interest in this case is identical to the interest of the representative Plaintiffs and the
class as a whole, and “[t]here is no indication whatsoever that the representation
rendered by [the current parties] would be inadequate.” Chiles, 865 F.2d at 1215.
Accordingly, he is not entitled to intervene under Rule 24(a).
C. Permissive Intervention
Rule 24(b) allows for permissive intervention, in the discretion of the Court, when
a party “has a claim or defense that shares with the main action a common question of
law or fact.” “If there is no right to intervene under Rule 24(a), it is wholly discretionary
with the court whether to allow intervention under Rule 24(b)[,] and even though there is
a common question of law or fact, or the requirements of Rule 24(b) are otherwise
satisfied, the court may refuse to allow intervention.” Purcell, 85 F.3d at 1513 (citation
omitted).
As noted above, Bourassa’s interests are adequately protected by the existing
parties to the lawsuit, and his intervention would not further the development of factual
or legal issues in the case. See Benjamin v. Dep’t of Pub. Welfare of Commonwealth.,
267 F.R.D. 456, 465 (M.D. Pa. 2010), aff'd, 432 Fed. Appx. 94 (3d Cir. 2011)
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(“Assuming, arguendo, the . . . Intervenors share a claim or defense with the parties in
the litigation, permissive intervention is nonetheless inappropriate because the
Applicants' interests are already represented in the litigation, and their appearance as
intervenors would not sufficiently add anything to the litigation.”). Although Bourassa
does challenge certain provisions of the Settlement Agreement, Doc. 227, the Court has
fully considered those arguments as objections. Doc. 256 at 22-23. Bourassa’s
participation as a representative party would not add anything to the case beyond what
his objections have added. His participation would also unnecessarily delay the
litigation and would be unfair to the existing parties by allowing Bourassa, who is not
even confined in the SMU, to become a representative party while they remain class
members. 4 Further, the class is represented by competent counsel, and Bourassa’s
participation, to the extent he made any meaningful decisions concerning litigation
strategy, would risk undermining the quality of representation for the class as a whole.
See Gonzales v. Cassidy, 474 F.2d 67, 72 (5th Cir. 1973) (noting that Rule 23(a)(4)’s
adequate-representation requirement is satisfied only if it “appear[s] that the
representative will vigorously prosecute the interests of the class through qualified
counsel”); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (“[W]e consider
the competence of a layman representing himself to be clearly too limited to allow him

4

Although the Court’s consideration of the timeliness of Bourassa’s motion, above, found that the existing
parties would not be prejudiced by any delay in Bourassa’s filing the motion to intervene, the prejudice
inquiry for permissive intervention considers prejudice more broadly. Stallworth v. Monsanto Co., 558
F.2d 257, 265 (5th Cir. 1977) (“it is apparent that prejudice to the existing parties other than that caused
by the would-be intervenor's failure to act promptly was not a factor meant to be considered where
intervention was sought under section (a). Therefore, to take any prejudice that the existing parties may
incur if intervention is allowed into account under the rubric of timeliness would be to rewrite Rule 24 by
creating an additional prerequisite to intervention as of right. Moreover, since section (b) provides that
prejudice to the original parties must be considered when permissive intervention is sought, to take that
same type of prejudice into account in the determining of timeliness would be to consider the same factor
twice”).

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to risk the rights of others . . . it is plain error to permit [an] imprisoned litigant who is
unassisted by counsel to represent his fellow inmates in a class action”).
As another court explained in denying a class member’s motion to intervene,
Here the interests of [the putative intervenor] are the same as that of the
named parties, to obtain a settlement that is fair, reasonable, and
adequate for the class. There are no divergent interests, only differing
opinions on how the proffered settlements fit within that framework. [The
intervenor’s] presence through intervention would not accomplish any
more than [his] participation as [an] objector[] and would create the
possibility of further delay and final disposition of this action. The Court
finds no reason justifying permissive intervention.
In re Domestic Air Transp. Antitrust Litig., 148 F.R.D. 297, 337 (N.D. Ga. 1993).
Bourassa likewise would not add to the case and would prejudice the other parties and
class members.
A treatise observed that permissive intervention “tends to be granted somewhere
between the Scylla of the intervenor adding nothing to the case, meaning she is likely
adequately represented and her presence will just slow things down, and the Charybdis
of the intervenor adding too much to the case, meaning the applicant is not necessarily
adequately represented but may unduly delay or prejudice the proceedings.” 3
Newberg on Class Actions § 9:36 (5th ed.). Bourassa’s motion is in the first category.
He is not entitled to permissive intervention. 5

5 Furthermore, because Bourassa is an inmate, he is subject to the Prison Litigation Reform Act. The
PLRA requires that prisoners bringing a lawsuit in forma pauperis each file their own complaint and each
pay the full filing fee. Hubbard v. Haley, 262 F.3d 1194, 1197-98 (11th Cir. 2001). There are numerous
examples of district courts, including this one, applying Hubbard to Rule 24 intervention. See, e.g., Doc.
103 (adopting Report and Recommendation to deny Movant Daker’s motion to intervene); Smith v. Fla.
Dep't of Corr., 2015 WL 500166, at *2 (S.D. Fla. Feb. 4, 2015); Daker v. Wetherington, 469 F. Supp. 2d
1231, 1235 (N.D. Ga. 2007); Daker v. Ferrero, 2007 WL 1100463, at *3 (N.D. Ga. Jan. 3, 2007); Sterling
v. Sellers, 2017 WL 4693495, at *1 (M.D. Ga. Oct. 18, 2017) (adopting Report and Recommendation to
deny Movant Daker’s motion to intervene); Gandy v. Gramiak, 2017 WL 2616920, at *2 (S.D. Ga. June
16, 2017), report and recommendation adopted, 2017 WL 4909473 (S.D. Ga. Oct. 31, 2017) (denying
Movant Daker’s motion to intervene).
Courts have applied Hubbard to Rule 24 in part because not doing so would allow pro se inmates to
bring claims without paying the filing fee simply by intervening after someone else files a similar
complaint, thus circumventing the PLRA’s filing fee requirement. See, e.g., Ferrero, 2007 WL 1100463,
at *3. That rationale may apply with less force to a present class member, whose rights will be

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III. CONCLUSION
For the reasons noted above, Bourassa’s motion to intervene (Doc. 228) is
DENIED.
SO ORDERED, this 10th day of May, 2019.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

adjudicated regardless of whether he is allowed to intervene, than it does to the typical Rule 24 movant.
Because Bourassa cannot satisfy the standard of Rule 24(a) or Rule 24(b), it is not necessary to
determine whether the PLRA bars Bourassa’s intervention.

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