Tellis v. LeBlanc

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

ANTHONY TELLIS, ET AL. CIVIL ACTION NO. 18-cv-0541

VERSUS JUDGE FOOTE

JAMES M. LEBLANC, ET AL. MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING

Before the Court is Plaintiffs’ second motion to amend their complaint [Record

Document 169] and their associated motion to supplement theit memorandum in support of

theit motion for class certification [Record Document 170]. Because Plaintiffs have carried

their burden to justify their late request for leave to amend, because proposed Plaintiff

Ronald Brooks (“Brooks”) has standing, and because the Coutt is satisfied that the claims

ate not moot for purposes of class certification, the motions [Record Documents 169 and

170] are GRANTED. The Clerk of Court is to file into the record Document 201-1 as the

Second Amended Complaint and Document 201-2 as the Supplemental Memorandum in

Support of Class Certification.

I. Background

As the procedural background of this matter has been discussed extensively in this

Court’s ruling on Plaintiffs’ first motion to amend the complaint, [Record Document 178 at

1-2, 14-15], this ruling will only update that history. The Magistrate Judge granted leave to

add the Advocacy Center as an associational plaintiff, a ruling that the undersigned ultimately

affirmed on appeal. [Record Documents 153 at 4-7, 154 at 7-9, and 178 at 4-18]. While

Defendants’ appeal was pending, Plaintiffs filed a second motion to amend, seeking to add

three additional named plaintiffs: Carlton Turner (“Turner”), Larry Jones (“Jones”), and

Brooks (collectively, “Additional Named Plaintiffs”). [Record Document 169 at 2]. They also

filed a motion for leave to supplement their memorandum in support of their motion for

class cettification in order to incorporate information about the Additional Named Plaintifts.

(Record Document 170]. At the same time, Plaintiffs filed a motion to dismiss Anthony

Tellis (“Tellis”), a named plaintiff who had been moved out of extended lockdown at David

Wade Cottectional Center (““DWCC”) and requested to withdraw from the litigation.

[Record Document 169-2 at 2 and 171]. Because this Court has dismissed Tellis, [Record

Document 174], the Plaintiffs in this matter are currently Bruce Charles (“Charles”) and the

Advocacy Center. [Recotd Document 154 at 7-11].

Plaintiffs filed the second motion to amend when the deadline for class discovery was

rapidly approaching. Faced with numerous unresolved discovery disputes, the patties agreed

that class discovery and merits discovery could proceed in tandem and that class certification

would be addressed alongside dispositive motions. [Record Document 182]. The Court

accordingly upset the original deadlines related to class certification. [Record Document

184]. The Court then issued a new scheduling order setting January 15, 2020 for the close of

fact discovery and October 1, 2020 for Plaintiffs’ supplemental briefing in support of class

certification. [Record Document 195]. The Court has subsequently further extended the

scheduling deadlines in this matter, making Plaintiffs’ supplemental briefing in support of

class due December 1, 2020. [Record Document 293].

The motion for leave to amend originally sought to add another named plaintiff,

Damonte Henty, [Record Document 169 at 2], who has since withdrawn from this litigation.

[Record Documents 196 and 197]. The Court ordered Plaintiffs to amend their proposed

amended complaint and the supplemental memorandum in support of class certification to

remove the allegations and arguments related to Henry. [Record Document 197 at 1].

Plaintiffs have complied with this order. [Record Documents 201-1 and 201-2].

Further, ptior to the Coutt ruling on the instant motions, Plaintiffs appealed a

discovery otdet issued by the Magistrate Judge. [Record Document 232]. Throughout the

course of briefing the appeal, Plaintiffs represented that Turner and Brooks were no longer

housed on the extended lockdown unit at DWCC. [Record Document 240 at 2-3]. This

prompted the Coutt to order additional briefing on whether the claims of inmates no longer

housed in extended lockdown at DWCC are moot, therefore preventing them from being

properly named as class representatives in this action and making the instant motion to

amend futile. [Record Document 259]. This issue has now been fully briefed, [Record

Documents 280, 292 and 296], and Plaintiffs’ motions ate ripe for review.

II. Analysis

A. Standard for Amendment of Pleadings

A court should “freely” grant leave to amend “when justice so requires.” Fed. R. Civ.

P. 15(a). However, once a scheduling order is in place, a request to amend a pleading after

the deadline for amendment has passed is controlled by a mote restrictive standard. Félgueira

v. U.S. Bank Nat'l Ass'n, 734 F.3d 420, 422 (5th Cir. 2013) (citing Fahim v. Marriot Hotel Servs.,

Inc, 551 F.3d 344, 348 (5th Cir. 2008)). Under that standard, leave may be gtanted “only for

good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The four factors

relevant to good cause are: ‘(1) the explanation for the failure to timely move for leave to

amend; (2) the importance of the amendment; (3) potential prejudice in allowing the

amendment; and (4) the availability of a continuance to cure such prejudice.” EEOC ». Serv.

Temps Inc., 679 F.3d 323, 334 (5th Cir. 2012) (quoting Fahim, 551 F.3d at 348).

B. Application

Turning first to Plaintiffs’ explanation for the timing of their motion to amend,

Defendants argue that Plaintiffs could have made their motion (filed on Match 22, 2019) as

as Januaty 2019. [Record Document 183 at 2-3, 5]. At the time this Court entered its

scheduling order, [Record Document 56], Plaintiffs had no teason to know that Tellis would

ask to withdraw from this litigation. Although it appeats that some weeks passed between

Plaintiffs’ knowledge that Tellis wished to withdraw and the motion to amend, Plaintiffs

have explained at least some of this delay by a need to meet with the Additional Named

Plaintiffs before filing the motion. [Record Document 169-2 at 3]. Therefore, the Court

finds that Plaintiffs have adequately explained their delay in seeking to amend theit

complaint to add the Additional Named Plaintiffs.

Second, the Coutt will address the importance of the amendment. A class action may

not be maintained without a named plaintiff. See Fed. R. Civ. P. 23(a). Given that at present

there is only one named plaintiff, Plaintiffs cortectly point out that any procedural or other

difficulties encountered with Charles could derail the class portion of this litigation after

both parties have already committed extensive resources to litigate the class certification

issue. [Record Document 169-2 at 4]. Allowing the Additional Named Plaintiffs to appear as

representatives of the proposed class will reduce the likelihood that the parties would

needlessly expend their resources. And so, this Court finds that the amendment is important

to the orderly progress of this litigation."

1 Although it appeared that allowing the Advocacy Center to enter as a plaintiff might

eliminate the need to certify a class, Plaintiffs have elected to ptoceed with class certification.

As this Court has pointed out, it appears that vague communication of Plaintiffs’ intentions

led this Court and Defendants to believe that adding the Advocacy Center as an

When affirming the Magistrate Judge’s decision to allow Plaintiffs to add the

Advocacy Center as a patty, this Court observed that including the Additional Named

Plaintiffs would have “no effect on the merits claims in this case.” [Record Document 178 at

22]. Although Defendants assert that this observation teduces the importance of the

proposed amendment, [Record Document 183 at 5], they appear to misunderstand the role

of representative parties in this action. The reason to allow the amendment is not to broaden

the set of issues in play or the scope of telief available (Le., merits issues). Rather, the

purpose of adding additional class representatives is to ensure that the withdrawal of the one

remaining representative would not prevent this Court from determining whether or not to

certify the class. Thus, the relative importance of the amendment at issue is a question of

procedural rather than substantive law, and it is in that sense that the proposed amendment

has no effect on the merits of this case.

The Court must next examine Defendants’ potential prejudice if the amendment is

allowed. Initially, Defendants argued that they would be prejudiced by the amendment

because the deadline for class certification was fast approaching. [Record Document 167-1 at

2-3]. Now that the Court has significantly extended the discovery deadlines, Defendants

atgue that they will be prejudiced because they will have to conduct written discovery about

and depositions of the Additional Named Plaintiffs. [Record Document 183 at 5-6]. While

Defendants might elect to conduct this discovery (and so incur the expense), it is also

possible that they might not do so; Defendants have not asserted that they will conduct this

discovery. Moreover, much of that discovery consists, as Plaintiffs point out, of medical and

other documents alteady in Defendants’ possession as the custodian of the Additional

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associational plaintiff would replace class certification rather than supplement it. [Record

Document 178 at 20]. The Court cautioned Plaintiffs to be more accurate in the future. □□□□□□

Named Plaintiffs. [Record Documents 169-2 at 5 and 186 at 4]. In addition, discovery must

be evaluated in light of the overall scope of litigation. See Fed. R. Civ. P. 26(b)(1) (requiting

that the scope of discovety be “proportional to the needs of the case”). In this case,

discovery has involved over one hundted thousand pages of documents related to all of the

inmates in extended lockdown at DWCC. [Record Document 136 at 4]. Even with the

expense of depositions (should defense counsel wish to take them), the Court finds that

discovety related to the Additional Named Plaintiffs will not substantially increase the

discovery burden that already exists. Thus, while the Court acknowledges that adding named

plaintiffs will somewhat increase Defendants’ burden when arguing against class

certification, the Court finds this ptejudice to be relatively minor when considered in light of

the overall scope of this litigation.

In re Norplant Contraceptive Products Liability Litigation, 163 F.R.D. 258 (E.D. Tex. 1995),

does not convince this Court otherwise. Although Defendants assert that this case is

analogous, [Record Document 183 at 8-9], this Court finds it readily distinguishable. In

Norplant, the district court found that the defendants were prejudiced when the plaintiffs

moved to add additional class representatives after the close of class discovety and after

defendants had filed their brief in opposition to class certification. Norplant, 163 F.R.D. at

260. The court understandably found that being unable to “reevaluate their decision

concerning which class representatives to depose for purposes of contesting master class

cettification” would disadvantage the defendants. Id Here, by contrast, the deposition

deadline has not yet passed and Defendants’ brief in opposition to class certification is not

due until December 2020. [Record Document 293]. Thus, Defendants do not face a similar

level of ptejudice as the Norplant defendants.

Finally, the Court notes that a short extension is available to cure any prejudice

Defendants may face. The deposition deadline is currently set for Match 15, 2020. [Record

Document 293]. With the supplemental class briefing not set to resume until December

2020, there is ample time to allow the parties additional time to complete depositions of the

Additional Named Plaintiffs upon request.

Therefore, the Court concludes that Plaintiffs have satisfied the requirements for a

gtant of leave to amend their complaint to add the Additional Named Plaintiffs.

C. Brooks’s Standing

Defendants argue that Brooks lacks standing to proceed in this matter because he

was not housed at DWCC at the time the original complaint was filed; Plaintiffs contest this

conclusion. [Record Documents 183 at 6, 186 at 1-3, 193 at 2-3, and 194 at 1-2]. Article II

standing is a matter of subject-matter jurisdiction. Crane v. Johnson, 783 F.3d 244, 251 (5th

Cir. 2015) (citing Lujan v. Defi. of Wildlife, 504 US. 555, 560 (1992)). Subject-matter

jurisdiction, including questions of standing, “is determined as of the date of the filing of the

complaint.” Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 460 (5th Cir. 2005) (quoting Carr

». Alta Verde Indus., Inc, 931 F.2d 1055, 1061 (5th Cir. 1991)). It is undisputed that Brooks

was not held in extended lockdown when Plaintiffs filed their initial complaint on February

20, 2018. [Record Documents 183 at 6 and 201-1 at 39]. He was in extended lockdown at

DWCC when the second amended complaint was filed on March 22, 2019. [Id]. Thus, the

question is whether the “complaint” that must allege facts sufficient to establish standing is

the original complaint or the proposed second amended complaint.

2 The second amended complaint was initially filed in connection with the instant

motion to amend the complaint, [Record Document 169-1], and thus the Court will treat

this as the date that Plaintiffs filed their amended complaint.

To addtess this issue, both patties point this Court to County of Riverside v. McLaughiin,

500 U.S. 44, 50-52 (1991). [Record Documents 186 at 2, 193 at 2-3, and 194 at 1-2]. In

McLaughlin, a plaintiff held in the county jail brought a class action complaint in August 1987

challenging the constitutionality of his probable cause hearing. Id at 48. An amended

complaint in July 1988 named additional class representatives. Id. at 48-49. The Supreme

Court held that for the three new plaintiffs, the relevant point in time at which to judge their

standing was “at the time the second amended complaint was filed.” Id. at 51.

There appeats to be no dispute that Brooks was held in extended lockdown on the

date that Plaintiffs filed their second amended complaint. Under McLaughin, that is the date

on which to judge the existence of standing. 500 U.S. at 51. At that point in time, Brooks

was suffering an alleged injury (ie. being held in the conditions ptevailing in extended

lockdown at DWCO), caused by Defendants’ conduct (i-e., their policies and procedures that

created those conditions), and that would be redressed by a ruling in his favor (Le., being

held in improved conditions). See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing

Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000); Laan,

504 U.S. at 560-61). This Court concludes that Brooks had standing at the time the second

amended complaint was filed and so this Court has subject-matter jurisdiction over his claim,

at least while Brooks was housed at DWCC.

The Court must next determine if Charles and the Additional Named Plaintiffs,

including Brooks, retain standing to serve as named plaintiffs in this matter given that they

ate no longer incarcerated in the extended lockdown units at DWCC.

D. Mbootness

At the Court’s request, both parties addressed the question of whether the claims of

the Additional Named Plaintiffs ate mooted by the fact that Plaintiffs’ suit seeks prospective

injunctive relief and none of the men remain in extended lockdown at DWCC such that they

will personally benefit from any injunctive telief that may be awarded in this case. While

briefing this issue, Plaintiffs represented that at this time neither the Additional Named

Plaintiffs not the remaining originally named plaintiff, Charles, remain in DWCC extended

lockdown. [Recotd Document 280 at 3]. The treason for this differs between the groups.

Charles is no longer at DWCC because he has been teleased from state custody while the

Additional Named Plaintiffs remain in custody but have been transferred to different

facilities. [Id.]

Parties must establish standing at the inception of a lawsuit and the case or

controversy must exist throughout all stages of litigation. Fontenot v. McCraw, 717 F.3d 741,

747 (5th Cir. 2015). When this does not occur, the case is moot and the claims should

usually be dismissed. Id. “A case becomes moot—and therefore no longer a ‘Case’ ot

‘Controversy’ fot purposes of Article I11—‘when the issues presented are no longer “live” or

the parties lack a legally cognizable interest in the outcome.” Id. (quoting A/ready, LLC ».

Nike, Inc., 568 U.S. 85, 91 (2013)). The legally cognizable interest requirement is also known

as the “petsonal stake” requirement. United States Parole Comm’n v. Geraghty, 445 US. 388, 396

(1980).

In this case, the conttovetsy remains live—at least for members of the proposed class

Charles and the Additional Named Plaintiffs seek to represent-—because the conditions of

confinement in the extended lockdown units of DWCC remain in a state that Plaintiffs

allege is unconstitutional. Rocky v. King, 900 F.2d 864, 867 (5th Cir. 1990). At issue, then, is

whether Charles and the Additional Named Plaintiffs retain a personal stake in the outcome.

Plaintiffs lack a personal stake in the outcome at this time because they do not stand

to personally benefit from any relief that may be granted. Their lawsuit seeks only

prospective declaratory and injunctive relief intended to stop the allegedly unconstitutional

conditions of confinement faced by inmates in DWCC extended lockdown. [Record

Document 201-1 at 58-59]. They seek no tedress for past harms they may have suffered

while incatcerated there. [Jd] Because Charles and the Additional Named Plaintiffs do not

cuttently teside in the DWCC units at issue, any relief granted would be of no benefit to

them—they are not currently suffeting the injury that this lawsuit seeks to stop. Genesis

Healthcare Corp. v. Symezyk, 569 U.S. 66, 71 (2013) (stating that the purpose of the personal

stake tequitement is to confine the federal judiciary to adjudicating “actual and concrete

disputes, the resolutions of which have ditect consequences on the patties involved.”). While

all of the men may very well remain fully committed to disputing “the lawfulness of the

conduct that precipitated the lawsuit, the case is moot if the dispute ‘is no longer embedded

in any actual controversy about the plaintiffs’ particular legal rights.” Yarls v. Bunton, 905

F.3d 905, 909 (5th Cir. 2018) (quoting Already, LLC, 568 U.S. at 91). Without a personal

stake in the outcome, the claims of Charles and the Additional Named Plaintiffs are moot

under general rules of mootness.

1. Capable of Repetition Yet Evading Review

Because the Court finds that the claims are moot under the general tules, it must next

address whether Plaintiffs’ claims qualify for an exception to the general rule of mootness.

Regardless of the fact that Plaintiffs seek to represent a class, Plaintiffs’ claims may avoid

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being dismissed as moot if their claims ate capable of repetition yet evading review. A claim

qualifies for the capable of repetition yet evading review exception to mootness “only ‘if (1)

the challenged action is in its duration too short to be fully litigated prior to its cessation or

expiration, and (2) there is a reasonable expectation that the same complaining party will be

subjected to the same action again.” United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1540

(2018) (quoting Tumer v. Rogers, 564 U.S. 431, 439-40 (2011). “(T]he standard is not

‘mathematically precise’ and requires only a ‘reasonable likelihood’ of repetition.” Olver v.

Scott, 276 F.3d 736, 741 (5th Cir. 2002) (quoting Honig v. Doe, 484 U.S. 305, 318-19 (1988).

First, precedent dictates that Charles’s claim does not qualify for the exception.

Plaintiffs argue that Charles faces a reasonable expectation that he will again suffer the

conditions of DWCC extended lockdown because, should he be arrested again and returned

to DWCC, he will be placed back on extended lockdown because inmates reenteting prison

tetain the classification they had at the time they left custody. [Record Document 280 at 7-8}.

This atgument fails because under Supreme Court precedent, a court may not base a finding

that a patty may again be subjected to an action on “the possibility that a party ‘will be

ptosecuted for violating valid criminal laws.” Sanchex-Gomex, 138 S. Ct. at 1541 (quoting

O'Shea v. Littleton, 414 U.S. 488, 497 (1974). Instead, courts must assume that litigants “will

conduct their activities within the law and so avoid prosecution and conviction as well as

exposure to the challenged course of conduct.” Id. With this assumption in mind, the Coutt

cannot conclude that Charles faces a reasonable expectation of return to DWCC extended

lockdown.

Second, the Additional Named Plaintiffs’ claims fail for a similar reason. The Fifth

Circuit has found claims of inmates seeking injunctive relief moot when the inmate was

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transferred to a different facility and refused to apply the capable of repetition yet evading

review exception because ttansfer back to the facility at issue in the lawsuit was too

speculative. See, ¢,2., Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001); Johnson v. Livingston,

779 F. App’x 254, 255 (5th Cir. 2019); Haralson v. Campuzano, 350 F. App’x 692, 696 (5th Cir.

2009).

Therefore, under general mootness rules, Plaintiffs’ claims should be dismissed as

moot. This conclusion is also applicable in the class action context if a named plaintiffs

claim becomes moot before the class is certified, as is the case here. Fontenot, 777 F.3d at 748.

There ate several additional possible mootness exceptions applicable to class actions,

however, that the Court must now address.

2. The Inherently Transitory Exception

The fitst possible exception unique to the class action context that may save the

Additional Named Plaintiffs’ claims from mootness is the “inherently transitory” exception.

Under this exception, a proposed named plaintiffs claim that becomes moot at some point

before a court tules on a motion for class certification may avoid being dismissed as moot if

the claims at issue are so “inherently transitory that the trial court will not have even enough

time to tule on a motion for class certification before the proposed representative’s

individual interest expires.” Geraghty, 445 U.S. at 399. For those claims that are inherently

transitory, “the ‘relation back’ docttine is ptoperly invoked to preserve the merits of the case

for judicial resolution.” McLaughiin, 500 U.S. at 52.

In an unpublished opinion, the Fifth Circuit recently examined Supreme Court

precedent and compiled a list of factors relevant to determining whether this exception

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should apply in a patticular case. Ward v. Hellerstdet, 753 F. App’x 236, 242 (5th Cir. 2018).

These factors ate whether:

[The challenged conduct giving rise to the claim is of a fleeting ot temporary

nature; uncettainty exists at the outset as to the duration of each plaintiffs

exposute to the allegedly harmful conduct; it is unlikely that any given

individual plaintiff could see his claim to fruition prior to the claim becoming

moot; and there exists a constant group of people suffering the harm alleged

by the plaintiffs.

Id. (citing Genesis Healthcare Corp., 569 U.S. at 76; Gerstein v. Pugh, 420 U.S. 103, 110, n.11

(1975)).

Plaintiffs clearly satisfy at least two of these elements. First, there is uncertainty

existing at the outset as to the duration of each individual plaintiffs claim. Inmates in

custody can be transferred at any time which makes predicting if a particular potential

plaintiff will remain on extended lockdown at DWCC throughout the duration of the class

cettification process nearly impossible. Second, while individual inmates may be transferred

out of extended lockdown at DWCC or released from custody, there will always remain

some gtoup of inmates housed in extended lockdown and subject to the allegedly

unconstitutional conditions.

Less cleat is whether the challenged conduct is of a fleeting or temporary natute and

whether any given individual plaintiff could see his claim to fruition before it becomes moot.

Defendants argue that Plaintiffs’ claims are not temporary because they seek to challenge the

conditions of extended lockdown which, by its very nature, is not temporary and often lasts

for years. [Record Document 292 at 7]. They further point to several inmates that have

remained housed in extended lockdown throughout the duration of this litigation. [Record

Document 292 at 7-8]. Plaintiffs concede that some inmates have remained on extended

lockdown at DWCC for years but note the near impossibility of accurately predicting for

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which potential plaintiffs this will be true, especially when Defendants retain complete

control over when an inmate may be moved from DWCC. [Record Document 296 at 4-5]

Courts have previously found claims raised in the prison context to be of a fleeting or

temporary nature when the challenged action lasts as few as several days to as long as several

months. McLaughlin, 500 U.S. at 51-52; Ward, 753 F. App’x at 242. In contrast, the Rocky ».

King court found that the inherently transitory exception was inapplicable to an inmate

attempting to represent a class of prisoners in a challenge to the constitutionality of field

work conditions at the Louisiana State Penitentiary because the inmate was challenging

conditions “of long-term, not short-term, confinement.” Rocky, 900 F.2d at 870.

While the average claim of a putative class representative in this case may be longer

than the several months previously held to be temporary or fleeting in the prison context,

other considerations lead the Court to conclude that Plaintiffs’ claims nonetheless qualify for

the inherently transitory exception. First, the parties agreed that adjudication of class

certification would be delayed until the dispositive motion stage of this litigation. [Record

Document 182]. This necessarily means that the timeftame during which Plaintiffs’ claims

may become moot has been expanded, currently to approximately three years for Charles

and two years for the Additional Named Plaintiffs. [Record Documents 2, 169, and 293]. In

telation to this extended certification process, claims lasting for several months of even a

yeat at a time are temporary or fleeting such that any potential plaintiff's claim faces a serious

tisk of becoming moot before the Court can rule on class certification. Second, it will be

neatly impossible for Plaintiffs to identify which, if any, inmates will be housed on extended

lockdown at DWCC long enough for a class to be certified. While the Fifth Circuit has not

addtessed which factor in the inherently transitory analysis is most important, at least one

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other Circuit has concluded that the “essence” of the inherently transitory exception is not

the length of confinement, but “uncertainty about whether a claim will remain alive for any

given plaintiff long enough for a disttict court to certify the class.” Olson v. Brown, 594 F.3d

577, 582 (7th Cir. 2010).

The extended class certification process in this case, the impossibility of predicting

which potential plaintiffs will remain at DWCC throughout the duration of the class

certification process, and the existence of a constant group of inmates subject to the

allegedly unconstitutional conditions lead the Court to conclude that Plaintifts’ claims ate

inherently transitory. Because Plaintiffs’ claims ate inherently transitory, the relation back

doctrine applies, and Charles and the Additional Named Plaintiffs’ claims ate not moot

because they telate back to when theit complaint was filed. McLaughlin, 500 U.S. at 52.

3. The “Picking Off’ Exception

Plaintiffs’ claims may also avoid being dismissed for mootness under the “picking

off? exception. This doctrine developed in the context of defendants fully satisfying the

monetaty claims of individually named plaintiffs seeking to represent a class before the class

could be certified, thetefore preventing a court from certifying a class and adjudicating the

class claims. See, ¢.g., Zecdman v. J. Ray McDermott & Co., Inc, 651 F.2d 1030, 1050 (5th Cir.

1980). Recognizing that this situation posed similar challenges as claims that ate inherently

transitory, the court held that when “there is pending before the district court a timely filed

and diligently pursued motion for class certification,” the putative class representatives’

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claims need not be dismissed for mootness even though their individual claims were

satisfied. Id. at 1051.

The policy concerns leading to this exception to the mootness doctrine are also of

legitimate concern in the context of this litigation where Defendants control where the

Additional Named Plaintiffs reside. Theoretically, Defendants could transfer any inmate

seeking to act as a class representative out of DWCC and into a different facility, thus

preventing any plaintiff from presenting claims that avoided mootness long enough for a

class to be certified.4 This is analogous to a wealthy defendant continually satisfying the

monetaty claims of individual plaintiffs. The Court therefore concludes that even if Charles’s

and the Additional Named Plaintiffs’ claims did not qualify for the inherently transitory

exception, the “picking off’ exception applies, and their claims are saved from mootness

because they relate back to the filing of their respective complaints.

II. Conclusion

For the reasons given above, the motion to amend the complaint [Record Document

169] is GRANTED. By granting leave to amend, this Court has added new representatives

for the proposed class. Hence, it is also appropriate for this Court to GRANT Plaintiffs’

associated motion to supplement their memorandum in support of the motion to certify a

class. [Record Document 170]. Carlton Turner, Larry Jones, and Ronald Brooks ate added as

3 While the Fifth Circuit has recently questioned the status of Zeidman, it has not yet

overruled the case and thus this Coutt treats it as conttolling precedent. Fontenot, 777 F.3d at

4 The Court does not intend to suggest that Defendants are currently engaged in

“picking off’ potential class representatives. It merely notes that Defendants have the ability

to engage in such action because of the relationship between the patties to this action. See

Zeidman, 651 F.2d at 1050 (“The fact remains that in those cases in which it is financially

feasible to pay off successive named plaintiffs, the defendants would have the option to

preclude a viable class action from ever reaching the certification stage.”) (emphasis added).

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teptesentative plaintiffs in this matter. The Clerk of Court is instructed to file Document

201-1 into the record as the Second Amended Complaint and Document 201-2 into the

tecotd as the Supplemental Memorandum in Support of Plaintiffs’ Motion for Class

Certification.

THUS DONE AND SIGNED in Shreveport, Louisiana, this the / 3K day of

March, 2020.

ELIZABETH E FOOTE

UNITED STATES/DISTRICT JUDGE

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