Huff et al v. CoreCivic, Inc. et al

Filing 175

MEMORANDUM AND ORDER denying 147 Motion for Joinder by Tywan A. Poole; denying 149 Motion for Joinder by Montgomery Carl Akers; denying 153 Motion for Traverse Reply to Joint Response by Tywan A. Poole; denying 154 Motion for Determinatio n of Class Action Status by Tywan A. Poole; denying 155 Motion for Determination of Class Action Status by Tyreece Gray; and denying 156 Motion in Compliance with Federal Rules and Civil Procedures by Montgomery Carl Akers. Signed by Chief District Judge Julie A. Robinson on 1/28/2020.Mailed to pro se party Tywan A. Poole, Montgomery Carl Akers, and Tyreece Gray by regular mail (bw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Ashley Huff and Gregory Rapp,
)
Individually and on Behalf of All Others )
Similarly Situated,
)
)
Plaintiffs,
)
)
v.
)
)
CoreCivic, Inc., f/k/a Corrections
)
Corporation of America,
)
)
and
)
)
Securus Technologies, Inc.
)
)
Defendants.
)
)

Case No. 2:17-cv-02320-JAR-JPO

MEMORANDUM AND ORDER
This matter is before the Court on the motions of three pro se movants to intervene in this
class action case pursuant to Fed. R. Civ. P. 24: Tywan A. Poole (Docs. 147, 153, 154),
Montgomery Carl Akers (Docs. 149, 156), and Tyreece Gray (Doc. 155) (collectively
“Movants”). A hearing on the motions was held January 28, 2020. For the reasons articulated
by the Court from the bench and explained in detail below, the Court denies Movants’ requests
to intervene.
I.

Background
This litigation arises out of a lawsuit alleging state and federal wiretap claims against

CoreCivic, Inc. (“CCA”) and Securus Technologies, Inc. (“Securus”). Named Plaintiffs Ashley
Huff and Gregory Rapp are individuals who were held by the United States Marshal Service at
CCA beginning on or about October 6, 2015 and August 14, 2014, respectively. They allege that
they had numerous phone conversations with their attorneys while housed at CCA with the
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understanding that their conversations were private. Plaintiffs allege that CCA and Securus
recorded communications between detainees and their attorneys. Plaintiffs allege that after entry
of this Court’s 2016 cease and desist order in United States v. Black, No. 16-20032-JAR (D.
Kan.), Defendants continued to record attorney-client telephone calls for no legitimate reason
related to the facility’s security or public safety.
On September 26, 2019, this Court granted preliminary approval of the class action
settlement between the parties, whereby Defendants agreed to establish a common settlement
fund in the amount of $1,450,000 to be paid to Settlement Class Members consisting of detainees
or former detainees at CCA as damages related to recording phone calls between detainees and
their attorneys.1 The proposed Settlement Class consists of approximately 540 persons, many of
whom remain incarcerated:
All detainees at Leavenworth Detention Center who, during the period
of June 1, 2014 through June 19, 2017, had their attorney-client
telephone calls recorded by Defendants: (a) after the detainee
requested privatization of his or her attorney’s phone number (subclass
A); (b) after his or her attorney requested privatization of the
attorney’s phone number (subclass B); (c) after Judge Robinson’s
cease and desist order on August 10, 2016, in the case styled U.S. v.
Black, Case No. 2:16-CR-20032 (subclass C); or (d) after the detainee
or his or her attorney otherwise notified one or more Defendants in
writing of their attorney-client relationship and provided written
notification of the attorney’s phone number at issue (subclass D).
Class Counsel developed the Settlement Class member list by reviewing voluminous call
record information and cross-referencing with privatization data produced by Defendants. Class
Counsel worked with CCA and the United States Probation Office to determine current
addresses. Notice of the Settlement was provided and the Court conducted a Fairness Hearing on
January 28, 2020. Class Counsel did not identify Poole, Akers, nor Gray as members of the
Settlement Class.
1

Doc. 146.

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II.

Discussion
Fed. R. Civ. P. 24 contemplates two grounds for intervention: intervention of right under

Rule 24(a), and permissive intervention under Rule 24(b). The movant bears the burden of
demonstrating that he has satisfied the conditions necessary for either grounds for intervention.2
Movants have not met their burden under either rule.
A.

Intervention as of Right

Intervention as of right is mandatory when a federal statute gives the applicant an
unconditional right to intervene, or when the applicant satisfies each of four conditions: “(1) the
application is timely, (2) the applicant claims an interest relating to the property or transaction
which is the subject of the action, (3) the applicant’s interest may be impaired or impeded, and
(4) the applicant’s interest is not adequately represented by existing parties.”3
Movants have not identified any federal statute giving them an unconditional right to
intervene in this case under Rule 24(a)(1) and cannot satisfy the third and fourth factors
established by Rule 24(a)(2). Defendants represent that after extensive review, their records do
not indicate that any Movant is a member of the Settlement Class or any of the sub-classes
certified by the Court in this case, nor has any Movant provided any evidence to establish class
membership. Because Movants have not established class membership, they effectively
maintain no interest in the disposition of this cause and fail to show how their respective interests
would be impaired or impeded by the denial of intervention. In fact, adding Movants to this case
would prejudice their interests because they would not benefit from the Settlement. Should the
Court approve the Settlement, this case will be dismissed with prejudice; if Movants are added as
parties, they will receive no compensation under the Settlement and their claims will be
2

See United States v. Albert Inv. Co., 585 F.3d 1386, 1390 (10th Cir. 2009).

3

Elliott Indus. Ltd. P’ship v. B.P. Am. Prod. Co., 407 F.3d 1091, 1103 (10th Cir. 2005) (citing Coalition of
Ariz./N.M. Ctys. for Stable Econ. Growth v. Dep’t of Interior, 100 F.3d 837, 840 (10th Cir. 1996)).

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dismissed with prejudice. Further, any interest Movants do maintain, though not described in
their respective motions, can be pursued through separate litigation.
B.

Permissive Intervention

Under Rule 24(b)(1)(B), on timely motion, the court may permit intervention to anyone
who “is given a conditional right to intervene by federal statute” or “has a claim or defense that
shares with the main action a common question of law or fact.” The decision whether to grant a
motion for permissive intervention is within the district court’s sound discretion.4 In exercising
its discretion, “the court must consider whether the intervention will unduly delay or prejudice
adjudication of the original parties’ rights.”5 Permissive intervention should be denied when the
potential intervenor will not “significantly contribute to the full development of the underlying
factual issues in the suit and to the just and equitable adjudication of the legal questions
presented.”6
Here, the Court agrees with the parties that Movants’ addition to this class action
litigation as pro se litigants, at this late stage of the case, would not aid in the disposition of the
case. Instead, intervention would only serve to unnecessarily clutter and delay adjudication of
the current proceedings. Accordingly, Movants’ motions are denied.
IT IS THEREFORE ORDERED BY THE COURT that the Motions to Intervene filed
by Tywan A. Poole (Docs. 147, 153, 154); Montgomery Carl Akers (Docs. 149, 156); and
Tyreece Gray (Doc. 155) are DENIED.

4

See City of Stillwell v. Ozarks Rural Elec. Co-op Corp., 79 F.3d 1038, 1043 (10th Cir. 1996).

5

Fed. R. Civ. P. 24(b)(3); see also Tri-State Generation & Transmission Ass’n, Inc. v. N.M. Pub.
Regulation Comm’n, 787 F.3d 1068, 1069 (10th Cir. 2015) (upholding district court’s denial of permissive
intervention where intervention would “burden the parties with additional discovery”).
6

Arney v. Finney, 967 F.2d 418, 421 (10th Cir. 1992) (permissive intervention properly denied when it
“would only clutter the action unnecessarily”).

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IT IS SO ORDERED.
Dated: January 28, 2020
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

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