Everson v. Bunch et al

Filing 72

REASONS and ORDER of Approval of Class Settlement. Signed by Judge Shelly D. Dick on 6/13/2016. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

TROY EVERSON
CIVIL ACTION
VERSUS
14-583-SDD-EWD
TALMADGE BUNCH, ET AL.

REASONS AND ORDER OF APPROVAL OF CLASS SETTLEMENT
In this Class Action, the following Motions are before the Court: Joint Motion
for Final Approval of Class Action Settlement;1 Motion for Attorney Fees (Application)
on Behalf of Class Counsel;2 Unopposed Motion for Reimbursement of Class
Counsel Expenses;3 and Consent Motion for Appointment of a Court Appointed
Disbursement Agent.4 Hearing on the Motions was held on April 21, 2016. After
considering the requirements of law and applicable jurisprudence, the evidence and
submissions of the Parties, the representations of the Parties, the Settlement
Agreement, the settlement related pleadings and the record of these proceedings,
for the reasons orally assigned on April 21, 2016, and for the following assigned
reasons, the Class Settlement shall be approved.

1

Rec. Doc. 60.
Rec. Doc. 54.
3
Rec. Doc. 62.
4
Rec. Doc. 63.
2

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Relevant Factual and Procedural History
On September 16, 2014, Troy Everson (“Everson” or “Plaintiff” or “Class
Representative”), a former prisoner who had been housed in the East Feliciana Work
Release Facility (“Facility”) in Clinton, Louisiana, from February 2012 until April 2014,
brought a class action Complaint5 against Sheriff Bunch6 asserting constitutional
violations under the 8th and 14th Amendment arising out of alleged inhumane
conditions of the Facility. The Class Representatives7 allege that the dangerously
unhealthy conditions of the Facility caused inmate residents to suffer severe health
effects due to exposure to “multiple species of toxic mold,” mildew, other
contaminants, as well as vermin, insects, and their excrement.8 The Complaint,
alleges that Sheriff Bunch was deliberately indifferent to the conditions of the Facility
and failed to take reasonable measures to remedy the unsanitary harmful conditions.
Everson sought declaratory and injunctive relief. Plaintiff exhausted all required
administrative remedies under the Administrative Remedy Procedure.9

On

September 9, 2015, and upon motion of the Parties, the Court converted a hearing
on Plaintiff’s motion to certify a class a class into a hearing on the Joint Motion for
Preliminary Approval of Class Action Settlement.

5

Rec. Doc. 1.
Plaintiff had originally named Officers Gerald Starks and Curtis “Pete” Fremin, Jr. as Defendants but
subsequently moved for their voluntary dismissal without prejudice. (Rec. Doc. 15). The Court granted
Plaintiff’s motion on January 16, 2015. (Rec. Doc. 18). During the interim of this lawsuit, Sheriff Talmadge
Bunch lost reelection as Sheriff and is no longer serving in that capacity.
7
Troy Everson and Louis Howard.
8
Rec. Doc. 1, pp. 3-4, ¶¶9, 13.
9
Rec. Doc. 1, p. 2, ¶7.
6

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The Court granted preliminary approval of the Settlement of this matter on
September 9, 2015 and set the matter for a Fairness Hearing on February 25, 2016.
The Court ordered the Parties to submit a proposed notice and notice plan for
approval within 10 days of the Fairness Hearing and notify the Court of any objections
to the proposed Settlement 20 days prior to the Fairness Hearing. The Court
convened the Fairness Hearing as scheduled but deferred the taking of evidence
until April 21, 2016, at which time the Court conducted proceedings to determine
whether the Settlement Agreement10 is “fair, reasonable, adequate and in the best
interest of the class” pursuant to Federal Rule of Civil Procedure 23 and applicable
law. Also, insofar as the settlement involves a public body and public money, the
Court has considered the fairness of the Settlement relative to the expenditure of
public funds.
The Court makes the following Findings of Fact and Conclusions of Law
and ORDERS:
Settlement Class Certification
1. Rule 23(a) of the Federal Rules of Civil Procedure provides that “[o]ne or
more members of a class may sue or be sued as representative parties on
behalf of all only if (1) the class is so numerous that joinder of all members
is impracticable, (2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the

10

Rec. Doc. 56-1.

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claims or defenses of the class, and (4) the representative parties will fairly
and adequately protect the interests of the class.” Rule 23(b)(3) requires
that “the court find that the questions of law or fact common to the members
of the class predominate over any questions affecting only individual
members, and that a class action is superior to other available methods for
the fair and efficient adjudication of the controversy.”
2. The Class Definition approved and adopted by the Court properly identifies
those entitled to relief, those bound by the judgment, and those entitled to notice.
The Court finds that membership in the class is clearly ascertainable.

Therefore, a class defined as follows is certified:
“Class” shall mean “all persons who in the period of
September 15, 2013 through September 9, 2015
were housed in the East Feliciana Work Release
Facility.”
3. To demonstrate numerosity sufficient to support the certification of a Rule
23(b) class, the proponents must establish that “the class is so numerous
that joinder of all members is impracticable.”11 Although the number of
members in a proposed class is not determinative of whether joinder is
impracticable, it has been noted that any class consisting of more than 40
members “should raise a presumption that joinder is impracticable.”12 In the
present action, 439 letters were mailed to potential class members. As of

11

Fed.R.Civ.P. 23(a)(1).
Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999)(citing 1 Herbert B. Newberg &
Alba Conte, Newberg on Class Actions §3.05 (3d ed. 1992)).

12

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February 15, 2016, 193 claim forms had been received by class counsel,
representing 44% of the total notices sent. Considering the number of
claimants, the Court finds that the Rule 23(a) numerosity requirement has
been satisfied.
4. Rule 23(a)(2) requires for class certification that the action consist of
questions of law or fact common to the class.

“[T]he threshold for

commonality is not high.”13 “Even a single common question of law or fact
can suffice.”14 This case involves claims arising under the 8th Amendment
of the United States Constitution for cruel and unusual conditions of
confinement due to alleged deliberate indifference of the past/former Sheriff.
In the present action, the factual and legal issues relating to the conditions
of the confinement and Sheriff Bunch’s conduct are common to the class.
Additionally, issues concerning causation of damages and liability are
likewise common to the class.

Therefore, the “low threshold” of the

commonality requirement is satisfied in this case.
5. Rule 23(a) requires that “claims or defense of the representative parties [be]
typical of the claims or defenses of the class.” In other words, the Court
must determine “whether the named plaintiff’s claim and the class claims
are so interrelated that the interests of the class members will be fairly and

13

Simms v. Jones, 296 F.R.D. 485 (N.D.Tex. July 9, 2013)(citing Jenkins v. Raymark Industries, 782 F.2d
468, 472 (5th Cir. 1986)).
14
Id. (citing Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2546, 2556 (2011)).

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adequately protected in their absence.”15 The test focuses on “the general
similarity of the legal and remedial theories behind plaintiffs’ claims.” In this
case, the circumstances surrounding Sheriff Bunch’s conduct, liability, and
defenses, as well as the legal theory upon which Sheriff Bunch’s liability is
predicated, are essentially the same with respect to the two named class
representatives and the remaining class members. There will be some
similarity in the harm or damages sustained by each class member.
Therefore, the typicality requirement is satisfied here.
6. The adequacy of representation factor requires that the Court consider
whether the representative parties will “fairly and adequately protect the
interests of the class.”16 The purpose of this inquiry is “to uncover conflicts
of interest between named parties and the class they seek to represent.”17
Here, the interest of the representative parties appears to be in alignment
with the interests of the class considering the class members will raise
identical 8th Amendment deliberate indifference claims arising out of their
confinement at the East Feliciana Work Release Facility. An Affidavit
submitted by counsel for Defendant Bunch reflects that “class counsel
demonstrated

themselves

to

be

15

resourceful,

innovative,

diligent,

Wal-Mart Stores, Inc., 131 S.Ct. at n. 5.
Fed. R. Civ. P. 23(a)(4).
17
Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625 (1997)(citing Gen. Tel. Co. of S.W. v. Falcon, 457
U.S. 147, 157-58 n. 13 (1982)).
16

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professional, hard-working, and highly competent—both as pertains to the
litigation and to confecting a settlement under the circumstances.”18
7. “Rule 23(b)(3) requires a showing that questions common to the class
predominate, not that those questions will be answered, on the merits, in
favor of the class.”19 Initially, “the Court must identify the substantive issues
that will control the outcome, assess which issues will predominate, and
then determine whether the issues are common to the class.”20

The

substantive issues that will control in this case are whether the living
conditions of the Facility are unconstitutional per the 8th amendment, and, if
so, were the unconstitutional conditions responsible for the individual class
member’s health ailments.

Here, the same substantive law, the 8th

amendment and the deliberate indifference liability standard of a prison
official will apply to all of the claims.21 The evidence offered shows that the
causation of injury factor and damages will be common to the class.22
Hence, the Court finds that the predominance factor has been satisfied.
8. Rule 23(b)(3) requires that a court make a finding that “a class action is
superior to other available methods for fairly and efficiently adjudicating the

18

Rec. Doc. 58-13 (Affidavit of William F. Dodd, counsel for Defendant).
Amgen, Inc. v. Conn. Retirement Plans & Trust Funds, 133 S.Ct. 1184, 1191 (2013).
20
Haley v. Merial, Ltd., 292 F.R.D. 339, 353 (N.D. Miss. 2013).
21
In a suit against a prison official for a violation of an Eighth Amendment right relating to an inmate’s
conditions of confinement, the following two elements must be me: (1) the prison official’s act or omission
must be objectively serious, in that it “result[s] in the denial of the minimal civilized measure of life’s
necessities” and (2) the “prison official must have a sufficiently culpable state of mind,” meaning that the
official was “deliberate[ly] indifferen[t] to inmate health and safety.” Farmer v. Brennan, 511 U.S. 825, 834
(1994).
22
Rec. Doc. 56-10 (Affidavit of Brent Driskill); Rec. Doc. 56-11 (Affidavit of Dr. Rathbone).
19

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controversy.” In determining whether the superiority requirement has been
satisfied, the Court may consider the following four factors: the class
members’ interests in individually controlling the prosecution or defense of
separate actions; the extent and nature of any litigation concerning the
controversy already begun or against class members; the desirability or
undesirability of concentrating the litigation of the claims in the particular
forum; and the likely difficulties in managing a class action.23 The fourth
factor, or the likely difficulties in managing a class action, may be
disregarded in a proposed settlement-only class.24 Because each of the
class members in this case were allegedly harmed by a common condition
and will rely upon the same legal theories, certifying the case as a class
action is the superior and most efficient means of resolving the claims.
9. In sum, the Court finds that the proposed class meets the Rule 23
requirements for certification as a settlement-only class action. The Court
adopts its prior Order granting the Joint Motion for Preliminary Approval of
Class Action Settlement.25

23

Rule 23(b)(3).
In re Heartland Payment Systems, Inc. Customer Data Sec. Breach Litig., 851 F.Supp.2d 1040, 1060
(S.D.Tex. Mar. 20, 2012)(“Under Amchem, this fourth factor [likely difficulties in managing a class action]
may be disregarded in a proposed settlement-only class.”).
25
Minute Entry from September 9, 2015 reflects that the Court approved the Joint Motion for Preliminary
Approval of Class Action Settlement. (Rec. Doc. 36).
24

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Notice
10.The Notice provided to the Class complies with this Court’s Orders, both as
to form and content, and was exemplary in its reach and effectiveness, as
evidenced by 99% reach and the number of Proof of Claim Forms submitted
as of this date. In particular, the notice sent to class members (1) informed
the class members of the nature of the action and the general terms of the
settlement; (2) provided several addresses of Plaintiff’s class counsel where
class members could write to review the settlement agreement, obtain a
claim form, and request additional information; (3) provided the street
address and location of the East Feliciana Work Release Facility where
class members could also obtain the Settlement Agreement, Notice, and
Proof of Claim Form; (4) contained the date, time, and place of the final
fairness hearing; and (5) contained information regarding class members’
ability to “opt-out” of or to object to the Settlement. The Court finds that the
Notice complies with and satisfies the requirements of Rule 23 and Due
Process.
11.The single “objection” made to (or more aptly, the inquiry raised about) the
proposed Settlement Agreement was withdrawn, such that there are no
objections to the Settlement.

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Fairness of the Settlement
12. A class action may not be dismissed or compromised without the approval
of the Court.26 Before the Court approves a settlement, the Court must find
that the proposed settlement is “fair, reasonable, and adequate.”27 The Fifth
Circuit has identified six factors, known as the Reed factors, that the Court
should consider in assessing whether a settlement is fair, reasonable, and
adequate: (1) the existence of fraud or collusion behind the settlement; (2)
the complexity, expense, and likely duration of the litigation; (3) the stage of
the proceedings and the amount of discovery completed; (4) the probability
of plaintiffs’ success on the merits; (5) the range of possible recovery; and
(6) the opinions of class counsel, class representatives, and absent class
members.28
13.For the purpose of approval of the Settlement, Class Counsel, acting in
accordance with this Court’s Orders, have sufficiently protected the interests
of the Class.
14.Per the submissions of all counsel, the Settlement Agreement was the result
of extensive and intensive arms-length negotiations among highly
experienced counsel, with full knowledge of the risks inherent in this
litigation, and the representations of these officers of the Court verify that

26

Fed. R. Civ. P. 23(e).
Fed. R. Civ. P. 23(e)(2).
28
Reed. v. General Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983).
27

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the Settlement Agreement was entered into in good faith, at arms-length,
and without collusion.
15.The Settlement Agreement is “fair, reasonable, and adequate for the Class”
and is in the best interest of the Class in light, inter alia, of the complexity,
expense and likely duration of this litigation, and the risks involved in
establishing liability, legal causation and damages; the absence of
insurance coverage; the benefit to the Class of a prompt correction of
conditions; and the difficulty of collecting any judgment. Insofar as the
settlement involves a public entity and public funds, the Court further finds
that the Settlement is fair and reasonable for the Defendant public entity.
16.With respect to the request for service awards to the original Plaintiff/Class
Representative Troy Everson and Class Representative Louis Howard, the
Court finds as follows:
A. As supported by the submissions, the Court finds that Mr. Everson
and Mr. Howard rendered service beneficial to the Class at some
personal expense and inconvenience.
B. That Mr. Everson and Mr. Howard placed the welfare of the Class
ahead of their own interests; and
C. That they collectively expended considerable effort assisting
counsel in the development of the case, case preparation,
responding to discovery, involvement in the settlement process,
appearing in court, and otherwise assisting Class Counsel.
The Court hereby ORDERS that the following service awards be paid by
the Defendant within 30 days of the entry of this Order, from funds separate
and apart from the Settlement Funds, in the following amounts:
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Class Representative Troy Everson $10,000.00; and
Class Representative Louis Howard $10,000.00.
17.The Court conducted an in camera review of time and billing records of
Class Counsel and finds that Class Counsel expended a substantial amount
of time and effort in the development of the case, pleadings, fact discovery,
consultation with experts of various disciplines; collection and review of
environmental testing reports and data, collection and review of medical
records of Class members; preparation of and dissemination of Notice to
the prospective Class; management of Class demographic data and
medical records; preparation for and attendance at Court ordered
conferences and hearings; extensive meetings and negotiations with
Defendants and defense counsel; site visits to the Facility; review and
analysis of public records and financial information relative to the
Defendants limited resources available to resolve and address the alleged
conditions at the Facility and to provide reasonable and necessary medical
care to the Class. Considering this evidence, and considering the results
achieved for the benefit of the Class, the Court finds that a fee award is just
and appropriate. The Court has considered the limited financial resources
of the Parish and the Court is mindful that public funds will be used to
ameliorate the harmful and unsanitary conditions present at the Facility. The
Class member detainees are in every sense wards of the Parish. As
detainees they are powerless to address the conditions complained of.
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Society cannot countenance the types of living conditions documented in
this case in a detention facility any more than society should countenance
such conditions in a public school or hospital. The Class Counsel, with the
cooperation of the Defendant and defense counsel imaginatively and
successfully negotiated a resolution which yields benefits to the Class, in
the form of injunctive relief, the value of which greatly exceeds the monetary
settlement amount.
Accordingly, an attorney fee of 25% of the Settlement Funds is hereby
awarded to Class Counsel.
18.Said fees shall be paid to Class Counsel (or their designee) on a prorated
basis as and when each Settlement Payment is received for disbursement
to the Class.
19.Inasmuch as the Settlement specifies monetary payments to the Class
over a 12 year term, Brown Claims Management Group is hereby
appointed as the Court Appointed Disbursement Agent (CADA). The
CADA shall initially be paid by Defendant (from funds separate and apart
from the Settlement Funds) at a rate of $75.00/hour plus actual expenses
for the first year, not to exceed 193 hours, without prior Court approval for
good cause shown or consent of the Settling Defendant. Thereafter, the
CADA’s hourly rate may be increased in an amount not to exceed any
increase in the CPI. The duties of the CADA shall include: maintaining the
database of class members developed by, and provided to the CADA by
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Class Counsel; receiving and distributing Settlement Funds; maintaining
an accounting of all Settlement Funds and expense distributions; and
providing that accounting to Class Counsel and defense counsel.
20.Class Counsel moves the Court for an Order awarding Class Counsel
reimbursement of expenses incurred for the benefit of the Class in the
amount of $12,531.29. The Defendant stipulated that the requested
expense reimbursement is both reasonable and related to the proceedings.
Class Counsel shall submit expense records to the Court for in camera
review within 15 days of this Order. The Court will rule upon Class Counsel’s
request for reimbursement of expenses by subsequent Order.
21. The evidence establishes that expenses associated with Class Notice
included $857.00 in reproduction costs and $637.00 in postage costs. The
evidence and stipulations of the Parties establishes that the Notice and
Notice administration was performed by para-professionals engaged by
Class Counsel at a reimbursement rate of $100/hour. Defendant stipulated
that the Notice costs were less than the Notice costs would have been had
an outside contractor been engaged to perform the same services.
Furthermore, the Court finds that, given the efficacy of the Notice, the
reimbursement requested is fair and reasonable. Accordingly, the Court
hereby ORDERS reimbursement of Notice related costs and expenses to
Class Counsel in the amount of $37,624.50 which shall be paid by the

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Defendant within 15 days of this Order from funds separate and apart from
the Settlement Funds.
22.The Settlement Agreement is to be effected, implemented, and enforced as
provided in the Settlement Agreement and as further ORDERED herein,
and, to the extent not inconsistent with this Order and Judgment or the
Court’s subsequent orders, the Settlement Agreement is hereby approved
and adopted by the Court.
a. Within 30 days, Compromising Defendant shall either discontinue
residential use of the Facility or shall cause to be conducted a
Toxicogenic Mold assessment of the Facility pursuant to and
consistent with the standards, methods and protocols set forth by
the American Industrial Hygiene Association in its standard entitled
“Recognition, Evaluation and Control of Indoor Mold, AIHA 2008.”
(the Standard).
b. If any Toxicogenic Mold, as defined in Paragraph 1(EE) of the
Settlement Agreement, is determined to be present in the Facility,
Compromising Defendant shall cause the mold to be remediated
pursuant to and consistent with the standards, methods and
protocols set forth by the Standard. Upon completion of remediation,
Compromising Defendant shall re-test the Facility in accordance
with the Standard. Compromising Defendant shall continue to re-test

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the Facility every six months until three consecutive tests are
negative for Toxicogenic Mold according to the Standard.
c. If Compromising Defendant does not discontinue residential use
of the Facility within 30 days, Compromising Defendant shall
implement a roach and rodent control program for the Facility under
the direction of a Louisiana licensed pest control contractor and
consistent with the guidelines set out in the United States
Department of Housing and

Urban Development (“HUD”)

Maintenance Booklet 7, “Termite, Insect and Rodent Control.” The
contractor employed by the Compromising Defendant shall reinspect the Facility every six months and shall institute any
necessary additional control program consistent with the HUD
guidelines.
d. If Compromising Defendant does not discontinue residential use
of the Facility within 30 days, Compromising Defendant shall also
implement the recommendations of the licensed HVAC contractor
who inspected the Facility, the report of which was entered into
evidence by agreement of the Parties. All HVAC recommendations
shall be implemented within 120 days of this Judgment.
23. Any amounts deducted from prisoner accounts or paid by any Class
Member for medical expenses related to mold exposure during the Incident
as defined in the Settlement Agreement shall be refunded by the
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Compromising Defendant to the Class Member within 10 days of the Final
Settlement Date.

In accordance with the Settlement Agreement,

entitlement to refund of medical expenses incurred during the Incident
requires only a showing of a temporal relationship to the Incident, but
Defendant shall have no obligation to refund medical expenses which are
clearly unrelated to environmental exposures at the Facility. Medical
expenses related to Toxigenic mold exposure and/or testing for, or related
to Toxigenic Mold exposure shall be the responsibility of Compromising
Defendant. As such, Class members and non-class detainees who incur
medical

expenses

related,

by

their

health

care

providers,

to

toxigenic/toxicogenic mold (the terms are defined identically and used
interchangeably in the medical literature) will be entitled to be reimbursed
for those expenses if these are incurred while a resident in the Facility and
prior to a date six months following the last inspection that revealed
toxigenic/toxicogenic mold at the Facility. (Settlement Agreement Paragraph
II(A)3). Any dispute as to the sums due shall be resolved by the CADA, with

class members assisted by Class Counsel. Either party may then appeal to
this Court or, at the Court’s discretion, to the Magistrate Judge with the
CADA’s findings reviewed based upon an abuse of discretion standard.
24. All Released Claims of the Class and the Class Members, as defined in the
Settlement Agreement, are hereby released, reserving, however, the right

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to enforce the Settlement made subject of this Order and Judgment of
Approval of Settlement.
25. Given the absence of objections, this Order and Judgment of Approval of
Settlement shall be immediately effective and appealable.
26. The Court reserves jurisdiction over the Parties to the Settlement
Agreement, their counsel, the CADA, and all persons retained to implement
the Settlement for all purposes necessary in the administration, supervision,
construction, and enforcement of the Settlement Agreement and of this
Order and Judgment of Approval of the Settlement.

Signed in Baton Rouge, Louisiana on June 13, 2016.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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