GUMM v. JACOBS et al

Filing 292

ORDER DENYING 264 Motion to Intervene. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 3/20/2020. (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
Gordon Evans moves to intervene as of right or, in the alternative, permissively.
For the following reasons, that motion (Doc. 264) is DENIED.
I. BACKGROUND
Evans states that in August 2016, he was assigned to the Tier III Program in the
Special Management Unit (“SMU”) at the Georgia Diagnostic & Classification Prison
(“GDCP”). Doc. 264 at 1. But he states that he is “out-to-court” and in the custody of
the United States Marshal Service. Id. 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 Settlement Agreement. Id. Movant Evans
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.
The Court also notes that it 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. Evans, who has been in federal custody but
could conceivably return to the SMU, is a potential future class member. 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. See
Doc. 252 at 14-15 (discussing assignment and evaluation procedure). Despite that
attenuated and uncertain connection to the Tier III program, class counsel treated a
similarly situated out-to-court inmate, Jeffrey Bourassa, as a class member. Doc. 252
at 6.
Bourassa and Cody Todd, another out-to-court inmate, previously filed motions
to intervene; their briefs and Evans’s are nearly identical, with only slight adjustments
and redactions. The Court denied Bourassa’s motion to intervene, Doc 258, and
Bourassa’s appeal of that denial is pending. Bourassa v. Jacobs, 19-11944. Because
Evans raises the same arguments, the Court’s analysis is essentially the same for him
as for Bourassa and Todd, except that Evans’s motion, unlike theirs, is untimely.
On May 7, 2019, the Court entered the parties’ Settlement Agreement as a final
injunction and entered judgment. Docs. 256; 257. That injunction will expire on May 7,
2022. It is unclear now what purpose Evans’s intervention would serve or how it would
impact the existing Settlement Agreement. In any event, as discussed below, Evans
may not intervene as a matter of right because his interests are adequately represented
by the existing representative plaintiffs, and permissive intervention is inappropriate
because, to the extent Evans’s intervention could affect the Settlement Agreement, it

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would weaken the quality of the class members’ representation and would risk
undermining a settlement that is fair, adequate, and reasonable.
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
the application is timely.” United States v. Jefferson Cty., 720 F.2d 1511, 1516 (11th
Cir. 1983).
As to the first factor, Evans claims he first learned of this case on February 26,
2019 and “is promptly moving to intervene, less than a month later.” Doc. 264 at 2. But
his motion was filed two months later at the earliest: it is dated April 26, 2019. Id. at 7-8.
And the envelope was postmarked May 14, 2019. Doc. 264-1. 1 During the two to two-

1

That discrepancy may stem from the fact that Evans’s motion is almost identical to Bourassa’s. Both
would-be intervenors claim they learned of the suit on February 26 and moved to intervene less than a

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and-a-half months that Evans waited to file, the Court’s approval of the parties’ class
action settlement was pending. Docs. 210; 256. Some inmates objected, including
Evans, and the Court considered those objections. Docs. 233; 256 at 21-25; 264 at 1.
If Evans wished to intervene, he should have filed his motion earlier. The first factor,
therefore, supports a finding that the motion is not timely. As to the second factor, the
delay resulted in the motion being received (and perhaps posted) after the Settlement
Agreement was finalized. Evans’s intervention would raise the possibility of
renegotiating the Settlement Agreement and potentially forfeiting the class-wide benefits
obtained by class counsel. Evans’s delay, therefore, clearly prejudices the existing
parties. As to the third factor, there is minimal prejudice to Evans if his motion is
denied, because the concerns he raises were also raised by Bourassa during the
objection period, and those concerns 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 Evans’s, 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 Evans’s motion. Considering all the circumstances, Evans’s motion is
untimely. Accordingly, he is not entitled to intervene.
B. Intervention as of Right
However, even if Evans’s motion were timely, intervention would not appropriate.
Rule 24(a)(1) allows intervention when the putative intervenor is “given an unconditional

month later. Doc. 228 at 9. Bourassa’s motion, unlike Evans’s, was actually dated and mailed within a
month after February 26, 2019. See generally Doc. 228.

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right to intervene by a federal statute,” but Evans 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 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,
Evans’s motion is untimely. Further, although his 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. 2
However, Evans 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

2

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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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
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). 3
Evans 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; 264 at 7. Evans, 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, Evans’s allegations undermine his conclusory statement that his interests
in limitations on long-term confinement are stronger than the interests of other class

3

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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members. It does not appear that Evans was transferred to the SMU Tier III until
August 2016, after he had already been incarcerated at Telfair State Prison, Hays State
Prison, and Hancock State Prison. Doc. 264 at 1. Accordingly, category (5) of
Paragraph 44 does not apply to him.
As to category (6), Evans gives no reason why he is any more likely than other
inmates to be placed in that category. 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. Evans, 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(6).
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 there for more than 24 months. Further, the settlement expires on
May 7, 2022. Docs. 256-1 at 26; 256 at 29. To even conceivably be prejudiced by
Paragraph 44, Evans would not only have to satisfy the three conditions noted above,
but also his return to GDC and assignment to the SMU would have to occur within the
next 48 days: after that, the Settlement Agreement’s term will be less than 24 months,
so any new inmates assigned to the SMU will be unaffected by Paragraph 44. A
review of the docket of his pending criminal case reveals that is extremely unlikely. See
United States v. Evans, 1:16-cr-427 (N.D.Ga.). Accordingly, although the Court
carefully considers his argument that his interests are inadequately represented, that
argument fails.
Further, the representative Plaintiffs have adequate incentive to pursue a
settlement which limits long-term confinement in the SMU. According to class counsel,

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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 remained there at least until the time the
Settlement Agreement was entered. 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.
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 class counsel could have
advocated more vigorously or achieved a better outcome regarding long-term
confinement. 4 The Court also believes that class counsel is better able to make
litigation decisions and negotiate favorable relief for the class than Evans. 5 See 3
Newberg on Class Actions, § 9:35 (5th ed.) (“Ordinarily . . . a mere difference in

4 The Court further notes that an exceptionless 24-month cap would prevent the Defendants from
confining certain inmates in the SMU no matter the security risk posed. Such a provision would create
serious problems in prison security and would potentially raise issues under 18 U.S.C. § 3626(a), which
prohibits 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. The
compromise reflected in Paragraph 44 is likely the most favorable relief that the class could have
obtained regarding limitations on long-term confinement in the SMU.
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For the same reason, Evans’s conclusory argument that he might pursue a different litigation strategy
from that of class counsel does not show inadequate representation. See Doc. 264 at 6-7.

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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.
In short, the representative Plaintiffs have the “same ultimate objective” as Evans
regarding conditions of confinement in Tier III, and they have at least as strong an
interest as he in limiting long-term confinement in Tier III. Int'l Tank Terminals, 579 F.2d
at 967. Accordingly, “a presumption arises that [Evans’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. Evans has not demonstrated—nor, apart from the conclusory allegations
regarding Paragraph 44, even argued—that there is “adversity of interest, collusion, or
nonfeasance.” Id. Inasmuch as Evans has any interest at all in conditions in the SMU,
that interest 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

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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, Evans’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)
(“Assuming, arguendo, the . . . [i]ntervenors 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 Evans does
challenge certain provisions of the Settlement Agreement, the Court has fully
considered those arguments as objections. Doc. 256 at 22-23 (addressing the same
arguments as advanced in objections by Waseem Daker and Bourassa). Evans’s
participation as a representative party would not add anything to the case.
His participation would also risk upsetting the substantial relief afforded by the
Settlement Agreement and would be unfair to the existing parties by allowing Evans,
who is not even confined in the SMU, to become a representative party while they
remain class members. Further, the class is represented by competent counsel, and
Evans’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

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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
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 . . . 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). Evans
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.). Evans’s motion is in the first category. He
is not entitled to permissive intervention. 6

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Furthermore, because Evans 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.

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III. CONCLUSION
For the reasons noted above, Evans’s motion to intervene (Doc. 264) is DENIED.
SO ORDERED, this 20th day of March, 2020.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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

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