United States America v. County of Los Angeles et al

MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Intervene 17

C.D. Cal.October 21, 2015

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE SHEPPARD, MULLIN, RICHTER & HAMPTON LLP GREGORY F. HURLEY, Cal. Bar No. 126791 ghurley@sheppardmullin.com MICHAEL J. CHILLEEN, Cal. Bar No. 210704 mchilleen@sheppardmullin.com BRADLEY J. LEIMKUHLER, Cal. Bar No. 261024 bleimkuhler@sheppardmullin.com 650 Town Center Drive, 4th Floor Costa Mesa, California 92626-1993 Telephone: 714.513.5100 Facsimile: 714.513.5130 LOS ANGELES COUNTY, OFFICE OF THE COUNTY COUNSEL Mary C. Wickham, Cal. Bar No. 145664 Rodrigo A. Castro-Silva, Cal. Bar No. 185251 rcastro-silva@counsel.lacounty.gov Brandon Nichols, Cal. Bar No. 187188 bnichols@counsel.lacounty.gov 500 W. Temple Street, Rm. 648 Los Angeles, CA 90012 Telephone: 213.974.1811 Facsimile: 213.626.7446 Attorneys for Defendants, COUNTY OF LOS ANGELES AND LOS ANGELES COUNTY SHERIFF JIM MCDONNELL UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION UNITED STATES OF AMERICA, Plaintiff, v. COUNTY OF LOS ANGELES AND LOS ANGELES COUNTY SHERIFF JIM MCDONNELL, in his Official Capacity, Defendants. Case No. 2:15-cv-05903-DDP-JEM Judge: Hon. Dean D. Pregerson DEFENDANTS’ OPPOSITION TO MOTION TO INTERVENE Date: November 3, 2015 Time: 10:00 a.m. Crtm: 3 Complaint Filed: August 5, 2015 Trial Date: None Set TERESA POWERS, DAVID PENN, TIMOTHY POLK, MARK SARNI, DERRICK THOMAS, DARSEL WHITFIELD, ROYAL WILLIAMS, AND LEPRIEST VALENTINE, Movants. Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 1 of 20 Page ID #:1305 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -i- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE TABLE OF CONTENTS Page INTRODUCTION ..................................................................................................... 1 FACTUAL BACKGROUND .................................................................................... 1 I. PROCEDURAL HISTORY. ........................................................................... 1 ARGUMENT ............................................................................................................. 2 I. INTERVENORS MUST HAVE INDEPENDENT STANDING. ................. 2 II. MOVANTS LACK STANDING BECAUSE THEY ARE NOT INCARCERATED. ......................................................................................... 3 III. MOVANTS’ CLAIMS ARE NOT RIPE. ....................................................... 5 IV. EVEN IF MOVANTS HAD STANDING AND THEIR CLAIMS WERE RIPE, THEY HAVE STILL NOT MET THE REQUIREMENTS FOR INTERVENTION UNDER RULE 24. ................ 10 A. Standard For Intervention Under Rule 24. .......................................... 10 B. Movants Have Not And Cannot Meet The Requirements For Intervention. ........................................................................................ 11 V. MOVANTS HAVE FAILED TO EXHAUST ADMINISTRATIVE REMEDIES. .................................................................................................. 14 CONCLUSION ........................................................................................................ 15 Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 2 of 20 Page ID #:1306 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ii- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE TABLE OF AUTHORITIES Cases Page(s) Abbott Labs. v. Gardner 387 U.S. 136 (1967) ............................................................................................. 6 Aguilar v. Woodring 2008 WL 4375757 (C.D. Cal. 2008) .................................................................... 7 Alaniz v. Tillie Lewis Foods 572 F.2d 657 (9th Cir. 1978) .............................................................................. 13 Artway v. Attorney General of State of N.J. 81 F.3d 1235 (3d Cir. 1996) ............................................................................. 7, 8 Bova v. City of Midfield 564 F.3d 1093 (9th Cir. 2009) .......................................................................... 5, 6 California v. Sanders 430 U.S. 99 (1972) ............................................................................................... 6 Calloway v. Thomas 2009 WL 1925225 (D. Or. 2009) ..................................................................... 5, 7 Curry v. Regents of the Univ. of Minn. 167 F.3d 420 (8th Cir. 1999) ................................................................................ 3 Johnson v. Pearson 316 F. Supp. 2d 307 (E.D. Va. 2004) ................................................................... 6 Jones v. Caddo Parish School Board 735 F.2d 923 (5th Cir. 1984) .............................................................................. 11 Kifer v. Ellsworth 346 F.3d 1155 (7th Cir. 2003) .......................................................................... 4, 5 League of United Latin Am. Citizens v. Wilson 131 F.3d 1297 (9th Cir. 1997) ............................................................................ 10 Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 3 of 20 Page ID #:1307 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iii- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE Lujan v. Defenders of Wildlife 504 U.S. 555 (1992) ............................................................................................. 3 Mannick v. Kaiser Foundation Health Plan 2006 WL 2168877 (N.D. Cal. 2006) .................................................................... 9 Marks v. Clark 2009 WL 2566957 (W.D. Wash. 2009) ........................................................... 3, 4 Martin v. Sargent 780 F.2d 1334 (8th Cir. 1985) .............................................................................. 3 McInnis-Misenor v. Maine Medical Center 319 F.3d 63 (1st Cir. 2003) .............................................................................. 5, 8 Michigan Association for Retarded Citizens v. Smith 657 F.2d 102 (6th Cir. 1981) .............................................................................. 11 Municipality of Anchorage v. United States 980 F.2d 1320 (9th Cir. 1992) .............................................................................. 6 Prete v. Bradbury 438 F.3d 949 (9th Cir. 2005) ................................................................................ 2 Ragsdale v. Turnock 941 F.2d 501 (7th Cir. 1991) .............................................................................. 11 S.H. v. Stickrath 251 F.R.D. 293 (2008) ........................................................................................ 11 Thompson v. Smith 2008 WL 1734495 (E.D. Cal. 2008) .................................................................... 7 U.S. v. Foundas 610 F.2d 298 (5th Cir. 1980) ................................................................................ 8 United States of America v. Bogard 187 F.3d 643 (8th Cir. 1999) ............................................................................ 3, 5 United States of America v. The County of Crittenden Case No. 3:89-CV-00141-GH (E.D. Arkansas, Dec. 16, 1998) .................. 11, 14 Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 4 of 20 Page ID #:1308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iv- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE United States v. State of Oregon 913 F.2d 576 (9th Cir. 1990) .............................................................................. 13 Warner v. Sherrer 2005 WL 2416972 ................................................................................................ 6 Statutes 42 U.S.C. § 1983 ...................................................................................................... 14 42 U.S.C. § 1997 ...................................................................................................... 14 42 U.S.C. § 1997e(a) ............................................................................................... 14 ADA ......................................................................................................... 1, 5, 8, 9, 14 Other Authorities F.R.C.P. 24 ................................................................................................. 1, 2, 10, 13 F.R.C.P. 24(a)(1), (2) ............................................................................................... 10 F.R.C.P. 24(b)(1)(A),(B) ......................................................................................... 10 Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 5 of 20 Page ID #:1309 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE INTRODUCTION Over 15 years ago, the United States of America (“DOJ”) instituted an investigation and eventually filed a lawsuit under the Civil Rights of Institutionalized Persons Act (“CRIPA”) regarding the condition of the Los Angeles County Jails. After painstaking negotiations over a one-year period, the DOJ and the County of Los Angeles (and the Los Angeles County Sheriff) (“County”) reached a complex and comprehensive settlement agreement for injunctive relief which was approved by the Court in September 2015. Now, Movants -- former inmates -- seek to intervene to modify the settlement agreement and start the whole process over again alleging violations of the ADA. As explained below, the Court should deny intervention for several, independent reasons. First, under black-letter law, Movants lack standing to assert injunctive relief claims because they are not currently incarcerated. Second, Movants’ claims are not ripe for judicial review. The provision in the settlement agreement that Movants are attempting to alter is not even in effect yet and thus none of the Movants has ever been subjected to its policies and procedures. There is absolutely no factual record regarding whether or how this provision will actually be applied to Movants, if ever. Third, even if Movants had standing and their claims were ripe, they have not and cannot meet the requirements for mandatory or permissive intervention under Rule 24. Finally, intervention must be denied because Movants have failed to exhaust their administrative remedies. FACTUAL BACKGROUND I. PROCEDURAL HISTORY. In June 1996, the DOJ notified the County that it was opening an investigation under CRIPA. (Docket 14 at ¶7). In September 1997, the DOJ issued a findings letter regarding mental health care for inmates at the Jails. (Id. at ¶8). In December 2002, the Parties entered into a Memorandum of Agreement (“MOA”) Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 6 of 20 Page ID #:1310 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE with respect to the mental health care services provided at the Los Angeles County Jails. (Id. at ¶9). On June 4, 2014, the DOJ sent a letter notifying the County that it believed its mental health care services were inadequate. (Docket 14 at ¶10). On August 5, 2015, the DOJ filed this lawsuit alleging violations under CRIPA (Docket 1) and simultaneously lodged with the Court the Parties’ settlement agreement (Docket 4). The settlement agreement involved “mental health care at the Jails resulting from the partial implementation of the 2002 MOA and current conditions within the Jails.” (Docket 14 at ¶12). The Court approved the settlement agreement on September 3, 2015. (Docket 13 and 14). Almost two months after the initiation of this lawsuit, on September 28, 2015, Movants filed a motion to intervene to modify the settlement agreement. (Docket 17). ARGUMENT I. INTERVENORS MUST HAVE INDEPENDENT STANDING. There is a split of authority regarding whether intervenors must independently satisfy Article III standing or can “piggyback” off the standing of the existing parties. See, e.g., Prete v. Bradbury, 438 F.3d 949, 971, fn. 8, (9th Cir. 2005). The Ninth Circuit has not decided the issue. Id. However, it is well established that once a lawsuit settles between the original parties, the intervenor must have independent standing: “Once the district court approves the consent decree, however, the original case or controversy evaporates, and an intervenor…must assert an independent case or controversy in order to maintain standing. Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 1706, 90 L.Ed.2d 48 (1986) (‘An intervenor’s right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III.’). The mere existence of a permanent Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 7 of 20 Page ID #:1311 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE injunction or consent decree thus is insufficient to provide an ongoing case or controversy upon which an intevenor may ride ‘piggyback.’” Florida Wildlife Federation, 647 F.3d 1296, 1302 (11th Cir. 2011). Thus, in this case, since the Court has already approved the settlement agreement between the parties, Movants must independently satisfy Article III standing. (Docket 13 and 14). II. MOVANTS LACK STANDING BECAUSE THEY ARE NOT INCARCERATED. To demonstrate standing, a plaintiff must show an injury to a legally protected interest that is “concrete, particularized, and either actual or imminent.” Curry v. Regents of the Univ. of Minn., 167 F.3d 420, 422 (8th Cir. 1999). The purpose of the imminence requirement is “to ensure that the alleged injury is not too speculative…[and] that the injury is certainly impending.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 564, fn. 2 (1992). The plaintiff must also show that the alleged injury is fairly traceable to the defendant’s conduct and that a favorable decision will likely redress the injury. Id. at 560-561. Under well-established law, former inmates lack standing to seek injunctive or declaratory relief to improve prison conditions. See, e.g., Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (“Appellant brings several claims against Sargent for injunctive and declaratory relief to improve the general conditions as Cummins…Appellant is now imprisoned in the Wrigthsville Unit. Thus, his claims for injunctive relief are moot. For the same reason, he does not have standing to seek declaratory relief”); Marks v. Clark, 2009 WL 2566957, *5 (W.D. Wash. 2009) (holding that plaintiff lacked standing because he was released from jail and that his “argument that he might be taken into custody” in the future was pure “conjecture”). The following cases illustrate this basic point. In United States of America v. Bogard, 187 F.3d 643 (8th Cir. 1999), Holbrook, a former inmate, moved to intervene in ongoing CRIPA litigation between the United States and Crittenden Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 8 of 20 Page ID #:1312 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE County involving the conditions at Crittenden County Jail. Holbrook had been incarcerated at the jail during the time the government and the county were implementing a consent decree. Id. at *1. The 8th Circuit held that Holbrook’s motion to intervene was properly denied because – as a former inmate – he lacked standing as a matter of law: “We agree with the district court that Holbrook lacked standing to intervene in this equitable action. Because Holbrook was no longer incarcerated at the jail when he moved to intervene, he could not show he suffered an injury greater than that suffered by other concerned Crittenden County residents.” Id. at *1. Likewise, in Kifer v. Ellsworth, 346 F.3d 1155 (7th Cir. 2003), Kifer, a former inmate, moved to intervene to modify a class action settlement agreement regarding the conditions at the Vanderburgh County Indiana Jail. The 7th Circuit, Posner, Circuit Judge, held that Kifer lacked standing as a former inmate and rejected outright his argument that the prospect of him getting arrested in the future was sufficient to confer standing: “Kifer’s appeal from the denial of his motion to intervene is moot, because, as we pointed out earlier, he cannot benefit from an order to improve conditions in a jail in which he is no longer being held. He says that he’s still a resident of Vanderburgh County and may be arrested and taken to the county jail at any time, but that contingency – which if taken seriously would entitle the entire county population, indeed perhaps the entire American population (since anyone might some day find himself in the Vanderburgh County Jail), to join the class – is too remote to keep his claim alive.” Id. at 1157. Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 9 of 20 Page ID #:1313 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE In this case, as in Bogard and Kifer, Movants lack standing. Movants concede that none of them are currently incarcerated at the Los Angeles County Jails. (Docket 17-3 at ¶¶10-17). Movants’ conjecture that they will likely be incarcerated again at some future, unspecified time is insufficient to confer standing. Kifer, supra at 1157. III. MOVANTS’ CLAIMS ARE NOT RIPE. The claims that Movants seek to bring in this action are not yet ripe for adjudication – making their intervention in this matter inappropriate. Through this action, Movants broadly seek to challenge discharge planning for the treatment and care of mentally disabled individuals at the Los Angeles County Jails. However, none of the Movants have ever been provided or denied treatment pursuant to the policies in the settlement agreement, the policies have not yet been implemented by the County, and whether Movants will ever be subject to these policies depends entirely on contingent future events – i.e. future imprisonment in the Los Angeles County Jails. “The ADA does not permit private plaintiffs to bring claims as private attorneys general to vindicate other people’s injuries.” McInnis-Misenor v. Maine Medical Center, 319 F.3d 63, 69 (1st Cir. 2003). “While standing is primarily concerned with who is a proper party to litigate a particular matter, ripeness addresses when litigation may occur.’” Bova v. City of Midfield, 564 F.3d 1093, 1096 (9th Cir. 2009), quoting Lee v. Oregon, 107 F.3d 1382, 1387 (9th Cir. 1997), cert. denied, 522 U.S. 927 (1997). “To meet the ripeness standard, petitioner must demonstrate a specific present harm, or the threat of specific future harm.” Calloway v. Thomas, 2009 WL 1925225, *4 (D. Or. 2009), citing Laird v. Tatum, 408 U.S. 1, 14 (1972). “A claim is not ripe for adjudication if it rests upon some contingent future event.” Id., citing Texas v. United States, 523 U.S. 296, 300 (1988); Bova, 564 F.3d at 1093. “This is so because, if the contingent events do not occur, the plaintiff will likely not have suffered an injury that is concrete and particularized enough to establish the first Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 10 of 20 Page ID #:1314 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE element of standing.” Bova, 564 F.3d at 1096 (case unripe where claimed injury – denial of health insurance – had not yet occurred and was contingent on (1) Plaintiff’s retirement and (2) official denial – events that might not occur). The ripeness doctrine seeks “to prevent the courts, through avoidance of entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967), overruled on other grounds, California v. Sanders, 430 U.S. 99 (1972). In evaluating ripeness, the court must consider the “fitness of the issues for review and the hardship of the parties withholding consideration.” Id.; see also Municipality of Anchorage v. United States, 980 F.2d 1320, 1323 (9th Cir. 1992). First, none of Movants are in the Los Angeles County Jails. Therefore, Movants’ claims, which are limited to declaratory and injunctive relief, are unripe (or moot) as a matter of law to challenge the policies or procedures in the jails. “When an inmate is dismissed from a prison system, there is no longer a substantial controversy between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of injunctive or declaratory relief.” Johnson v. Pearson, 316 F. Supp. 2d 307, 315 (E.D. Va. 2004), citing Inmates v. Owens, 561 F.2d 560, 562 (4th Cir. 1977) (citing Golden v. Zwickler, 394 U.S. 103, 108 (1969); see also Warner v. Sherrer, 2005 WL 2416972, *1 at fn.3 (D.N.J. 2005) (finding injunctive relief claims regarding prison conditions moot due to release). Second, courts routinely dismiss challenges to rules and regulations governing prisons, where their application to a plaintiff was contingent on future events. Moreover, courts have been reticent to pass judgment on a policy or procedure where there is no factual record by which to evaluate a particular claim. The following cases are illustrative. Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 11 of 20 Page ID #:1315 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE In Calloway v. Thomas, 2009 WL 1925225 (D. Or. 2009), a district court held that an inmate’s claim that the defendant agency would not consider early placement at a residential reentry center pursuant to recently adopted changes to the placement review process was not ripe for review. The court reasoned that the claims were unripe because they had not yet been applied to petitioner (and may never be): “With respect to petitioner’s claims that the BOC refuses to consider inmates for twelve months RRC time, I conclude they are not ripe. Petitioner appears to concede that he has not received pre-release RRC placement review under the October 2008 regulations, the April 14 Memorandum, or Programs Statement 7310.04, implementing § 3624(c), because two years remain before his projected release date. A review of the record demonstrates that these rules have not been applied to petitioner in a concrete and particularized way. Because petitioner is not presently entitled to a RRC assessment under § 3624(c), he has not demonstrated a specific present objective harm or a specific future harm. Indeed, his projected release date is tentative as some intervening event may impact when he receives that review.” Id. at *4 (emphasis added); see also Thompson v. Smith, 2008 WL 1734495, *4 (E.D. Cal. 2008), adopted in full, 2008 WL 1970318 (E.D. Cal. 2008) (inmate’s claim demanding immediate assessment for RRC placement not yet ripe); Aguilar v. Woodring, 2008 WL 4375757, *3-4 (C.D. Cal. 2008) (same). By comparison, the Calloway court did find that his claim that the fact he was denied review under previous regulations was, in fact, ripe because he had actually been impacted by them. Id. at *6. Similarly, in Artway v. Attorney General of State of N.J., 81 F.3d 1235, 1246- 52 (3d Cir. 1996), the Third Circuit found that a sex offender who had been released from prison did not have a ripe claim to challenge a statute that would require Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 12 of 20 Page ID #:1316 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE notification to private citizens if the local prosecutor should determine that he presented a moderate or high risk of offending again. The court found that it was a matter of speculation whether a moderate or high risk determination would ever be made – there was no present hardship and plaintiff could seek an injunction in the future if he returned to the state, registered, and a notification determination were made. Moreover, there were no facts to illuminate the operation or possible effects of the notification provisions. Id. at 1246-52; see also U.S. v. Foundas, 610 F.2d 298, 301 (5th Cir. 1980) (challenge was not ripe where it was a matter of speculation whether parole guidelines to criminal defendant would be helpful or harmful as she had yet to serve her term because she might be released soon after imprisonment or the guidelines might be changed before she became parole eligible). As another example in the ADA context (outside of the prison system), in McInnis-Misenor v. Maine Medical Center, 319 F.3d 63 (1st Cir. 2003), the court dismissed an ADA plaintiff’s barrier claims as unripe because they were contingent on speculative future events. In McInnis-Misenor, the plaintiff was a woman seeking to have a second child (but not yet pregnant) who sued a hospital that handled high-risk deliveries to make the bathrooms wheelchair accessible. The First Circuit affirmed the district court’s conclusion that the case was not ripe for adjudication – despite the fact the woman had previously been treated at the hospital during her first pregnancy. The court reasoned that her claims for injunctive relief were premature by explaining: “[Plaintiff] may never become pregnant, or she may not deliver, or MMC may have a new facility by then and so that the claimed injury may never come to pass. The conditional nature of the claims counseled in favor of the district court refusing to entertain jurisdiction at this point.” Id. at 73. Each of the aforementioned cases illustrate that the case Movants seek to bring before the Court is not yet ripe for adjudication. Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 13 of 20 Page ID #:1317 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE First, the provision agreed upon in the settlement agreement is not scheduled to take effect until January 2016. (Docket 14 at ¶115). Therefore, none of the Movants have been provided, or denied, services pursuant to the settlement agreement. Moreover, it is not certain that the policies currently outlined in the settlement agreement will be the final policies that will go into effect. (Docket 14 at ¶119 (noting that the DOJ and County can agree to make changes to the settlement agreement by written stipulation). Second, it is entirely speculative at this point whether any of the Movants will ever be subject to mental health services pursuant to the settlement agreement. It is unknown at this time whether any of the Movants will be incarcerated again. It is possible that Movants may find effective treatment, never be arrested again, relocate out of the area, fall ill, or be incarcerated elsewhere. It is further unknown whether any of the Movants will be adversely (and specifically) impacted by the precise policies challenged in the motion to intervene. For instance, it is hypothetical whether Movants will be imprisoned for more or less than seven days, will be denied access to discharge planning, will fail to be meaningfully connected to a service provider, or will be determined to be in “intense need for assistance” and referred to restrictive institutional settings. The factual record is entirely absent of how these policies will actually be laid out or applied to one of the particular Movants, if ever. As if to highlight these problems, Movants’ motion frequently resorts to strawman speculative arguments regarding how the policies in the settlement agreement will be actually implemented by the County. (See, e.g., Docket No. 17 at 26 (describing imagined horrors caused by hypothetical distribution of pamphlets)). Further, in order to even state a “reasonable modification” policy claim under the ADA, a plaintiff bears the burden of showing that he requested a modification, that the requested modification was reasonable, and that the requested modification was denied. See, e.g., Mannick v. Kaiser Foundation Health Plan, 2006 WL Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 14 of 20 Page ID #:1318 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE 2168877 (N.D. Cal. 2006). The factual record before the Court is devoid of any evidence that Movants ever requested that the County modify its policies to accommodate their specific needs or that their requests were denied. Quite simply, there is no present hardship being experienced by Movants as a result of the settlement agreement; any future hardship is speculative and contingent on events that may or may not come to pass. There is also no prejudice to Movants seeking an injunction in the future. Movants have identified no case or controversy that is ripe for this Court to review and, therefore, the motion to intervene must be denied. IV. EVEN IF MOVANTS HAD STANDING AND THEIR CLAIMS WERE RIPE, THEY HAVE STILL NOT MET THE REQUIREMENTS FOR INTERVENTION UNDER RULE 24. A. Standard For Intervention Under Rule 24. To meet the requirements of mandatory intervention, an intervenor must show: “(1)…an unconditional right to intervene by a federal statute; or (2)…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.” F.R.C.P. 24(a)(1), (2). To meet the requirements of permissive intervention, an intervenor must show: (1) a conditional right to intervene by a federal statute; or (2) a claim or defense that shares with the main action a common question of law or fact. F.R.C.P. 24(b)(1)(A),(B). Rule 24 also requires that the application be timely. Three factors should be considered: (1) the stage of the proceeding; (2) the prejudice to other parties; and (3) the reason for and length of the delay. League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1301 (9th Cir. 1997). Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 15 of 20 Page ID #:1319 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE “The purpose of the “timeliness inquiry is to prevent a tardy intervenor from derailing a lawsuit within sight of the terminal…A motion to intervene filed during the final stages of a proceeding is not favorably viewed.” S.H. v. Stickrath, 251 F.R.D. 293, 297 (2008). Prejudice exists when an intervenor files his application after settlement has been reached. See, e.g., Ragsdale v. Turnock, 941 F.2d 501, 504 (7th Cir. 1991) (“Once parties have invested time and effort into settling a case it would be prejudicial to allow intervention”); Jones v. Caddo Parish School Board, 735 F.2d 923, 935 (5th Cir. 1984) (“Prejudice to the United States and the School Board is apparent. After nearly a year’s negotiations they have finally arrived at a complex, interrelated settlement and consent decree disposing of the lawsuit between the two of them”); Michigan Association for Retarded Citizens v. Smith, 657 F.2d 102, 105 (6th Cir. 1981) (“allowing intervention at this point, would seriously delay the parties’ ability to implement the provision of the Consent decree, and this delay would necessarily work to the detriment of the individuals for whose welfare this suit was instituted”). B. Movants Have Not And Cannot Meet The Requirements For Intervention. Intervention is not warranted in this settled CRIPA litigation. The case of United States of America v. The County of Crittenden, Case No. 3:89-CV-00141-GH (E.D. Arkansas, Dec. 16, 1998) is illustrative. (Copy of Opinion attached as Exhibit A to Chilleen Decl.). There, the United States filed a CRIPA lawsuit against the County of Crittenden. The district court later approved a consent decree requiring the defendants to take certain remedial actions at the detention facility and to submit periodic compliance reports. Id. at 1. A former inmate sought to intervene. The district court concluded that he lacked standing since he was no longer incarcerated at the facility. Id. at 2. In Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 16 of 20 Page ID #:1320 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE addition, assuming arguendo that he had standing, the district court concluded that that neither mandatory nor permissive intervention was warranted. Id. With respect to mandatory intervention, the district court concluded that the former inmate had not shown that his interests would be impaired if intervention were not allowed because he could initiate a separate action: “Hollbrook has not demonstrated that any claim he has against defendant would be impaired by disposition of this case. That is, Hollbrook may file an individual action under 42 U.S.C. § 1983. The present litigation would not impede his right to do so.” Id. at 3. The district court also concluded that the former inmate’s rights were adequately protected given that the United States is presumed to adequately represent all of its citizens: “Furthermore, Holbrook has not demonstrated that his rights as a former inmate are not adequately represented by the United States. When one of the parties to the litigation is an arm or agency of the government and the case concerns a matter of ‘sovereign interest,’ an intervener has a greater burden of showing that his or her interests are not adequately represented by the parties as the government is ‘presumed to represent the interests of all its citizens.’ Mausolf v. Babbitt, 85 F.3d 1295, 1303 (8th Cir. 1996). Here, Hollbrook’s interests are a concern of the United States, which as parens patriae, it is charged with protecting. Therefore, the presumption of adequate representation applies unless Hollbrook makes a strong showing of inadequate representation.” Id. at 3. With respect to permissive intervention, the district court concluded that there was not sufficient commonality between a possible damages action and the Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 17 of 20 Page ID #:1321 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE equitable action under CRIPA and, even if commonality existed, intervention was not warranted due to the prejudice that would be caused by allowing intervention after a consent decree had already been approved. Id. at 3-4. In this case, Movants are tardy and do not meet the requirements of Rule 24. As explained above, the DOJ’s CRIPA investigation began in September 1997 and resulted in the 2002 MOA, the June 4, 2014 Letter, and the August 5, 2015 settlement agreement. Despite the fact that the CRIPA investigation began 18 years ago, Movants did not seek to intervene until the end of September 2015 after the Court approved the parties’ settlement agreement. Movants have not offered any justification for their dilatory conduct. See, e.g., Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir. 1978) (“Intervention after entry of a consent decree is reserved for exceptional cases…The crux of appellants’ argument is that they did not know the settlement decree would be to their detriment. But surely they knew the risks. To protect their interests, appellants should have joined the negotiations before the suit was settled”); CE Design LTD, 2012 WL 2976909, *10 (N.D. Ill. 2012) (court rejected intervenors’ argument that they were entitled to see the actual settlement agreement before deciding whether their interests were impaired – “people potentially affected by the decision can’t sit on the sidelines, as if intervention were a petition for rehearing”) citing United States v. Blagojevich, 612 F.3d 558, 561 (7th Cir. 2010). Under these circumstances, Movants’ motion is untimely and it would be severely prejudicial to allow intervention at this late juncture since the Parties would have to start the settlement process over again with Movants having to acquiesce in any potential resolution. See, e.g., United States v. State of Oregon, 913 F.2d 576, 588-589 (9th Cir. 1990) (no abuse of discretion by court’s finding undue prejudice when intervention sought after settlement involving delicate compromise following four years of negotiation). Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 18 of 20 Page ID #:1322 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE In addition, Movants have failed to show that their interests would be impaired or prejudiced as required for mandatory intervention. As in The County of Crittenden case, Movants can simply file a separate lawsuit. There is no need to complicate and disrupt this lawsuit by injecting a new party after a settlement agreement has been reached and approved by the Court. Moreover, Movants have failed to meet their heavy burden to show that the DOJ does not adequately represent their interests. The DOJ drafts ADA guidelines, regulations, and manuals to assist individuals and public and private entities in understanding their rights and obligations under the Act. Certainly, the DOJ is in a good position to ensure that the settlement agreement does not violate the ADA. Moreover, the Court approved the settlement agreement and was thus satisfied that it did not violate any laws.1 Finally, Movants have failed to establish a common question of fact or law as required for permissive intervention. This was a CRIPA lawsuit – not an ADA lawsuit. The DOJ’s complaint alleged inadequate mental health and protective services, inadequate housekeeping, sanitation, and maintenance, and excessive force. (Docket 1 at ¶¶22-26). Nowhere did the DOJ allege any ADA violations. V. MOVANTS HAVE FAILED TO EXHAUST ADMINISTRATIVE REMEDIES. 42 U.S.C. § 1997 provides that: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). In this case, Movants concede that they have not exhausted any administrative remedies, but will likely argue that they do not have to because they are not currently incarcerated. However, Movants cannot have it both ways – either they 1 Unfortunately, an application for intervention is not to be resolved by the ultimate merits of the claims the intervenors seek to assert. Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 19 of 20 Page ID #:1323 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15- SMRH:473485792.1 OPPOSITION TO MOTION TO INTERVENE must be considered “prisoners” for purposes of having to exhaust administrative remedies or they lack standing because they are not currently incarcerated. Either way, their motion to intervene must be denied. CONCLUSION For all of the above reasons, Defendants respectfully request that Movants’ motion to intervene be denied in its entirety. Dated: October 21, 2015 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By /s/ Gregory F. Hurley GREGORY F. HURLEY Attorneys for Defendants, COUNTY OF LOS ANGELES AND LOS ANGELES COUNTY SHERIFF JIM MCDONNELL Case 2:15-cv-05903-DDP-JEM Document 51 Filed 10/21/15 Page 20 of 20 Page ID #:1324