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In Re Tehum Care Services, Inc., -Motion for Leave to File Amici Curiae Brief in Support of The Official Committee of Tort Claimant

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Case 23-90086 Document 1393 Filed in TXSB on 02/23/24 Page 1 of 9

In re:
Tehum Care Services, Inc.,


Chapter 11
Case No. 23-90086 (CML)

The American Civil Liberties Union, Center for Constitutional Rights, Public
Justice, Rights Behind Bars, The Human Rights Defense Center, and The UC
Berkeley Center for Consumer Law & Economic Justice (together, the “proposed
amici”), by and through undersigned counsel, hereby move the Court for leave to
file an amicus brief in this case. In support of this Motion, proposed amici state as
“The decision whether to permit a person to appear as amicus curiae is
committed to the Court's discretion.” Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv.
Sec. LLC, 550 B.R. 241, 256 (Bankr. S.D.N.Y. 2016); see also In re Ginaldi, 463
B.R. 314, 316 (Bankr. E.D. Pa. 2011) (recognizing bankruptcy court has “broad Case
23-90086 Document 576 Filed in TXSB on 05/17/23 Page 1 of 10 discretion to

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permit an amicus curiae to participate in a pending action”); In re Edison Mission
Energy, 610 B.R. 871, 878 (Bankr. N.D. Ill. 2020) (same); United States v. Alkaabi,
223 F. Supp. 2d 583, 592 (D.N.J. 2002) (same).
This Court has inherent authority to appoint amicus curiae to assist in its
proceedings. See Liberty Res., Inc. v. Phila. Hous. Auth., 395 F.Supp. 2d 206, 209
(E.D.Pa. 2005). The decision to permit submissions from amicus curiae is within the
broad discretion of this Court. See United States v. Alkaabi, 223 F.Supp. 2d 583, 592
(D.N.J. 2002).
Although there is no rule in the Federal Rules of Bankruptcy Procedure or the
Local Bankruptcy Rules of this Court governing the appearance of amicus curiae in
these proceedings, Federal Rule of Appellate Procedure 29 provides that a motion
for leave to appear as amicus curiae “must be accompanied by the proposed brief
and (A) state the movant’s interest and (B) the reason why an amicus brief is
desirable and why the matters asserted are relevant to the disposition of the case.”
F.R.A.P. 29(a)(3). The Fifth Circuit, in the context of a bankruptcy case, has
explained: An amicus brief should normally be allowed when a party is not
represented competently or is not represented at all, when the amicus has an interest
in some other case that may be affected by the decision in the present case (though
not enough affected to entitle the amicus to intervene and become a party in the
present case), or when the amicus has unique information or perspective that can

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help the court beyond the help that the lawyers for the parties are able to provide. In
re Halo Wireless, Inc., 684 F.3d 581, 596 (5th Cir. 2012) (quoting Ryan v. CFTC,
125 F.3d 1062, 1063 (7th Cir. 1997)). The Fifth Circuit has also explained that courts
would be “well advised to grant motions for leave to file amicus briefs unless it is
obvious that the proposed briefs do not meet Rule 29’s criteria as broadly
interpreted” because “if a good brief is rejected,” the court “will be deprived of a
resource that might have been of assistance.” Lefebure v. D’Aquilla, 15 F.4th 670,
676 (5th Cir. 2021). Here, the proposed amicus curiae brief satisfies the conditions
set forth in Federal Rule of Appellate Procedure 29 because it helps represent the
interests of pro se incarcerated litigants, and also offers a unique perspective
regarding the barriers incarcerated people face in accessing the courts that raise
unique due process concerns in the bankruptcy context.

Interests of Amici

Proposed amici are non-profit advocacy and research organizations with
decades of experience advocating for the rights of incarcerated people and
vulnerable populations, including involvement in litigation relating to Corizon’s
failures to provide adequate care. As a result of that advocacy, proposed amici are
familiar with the barriers that incarcerated people face in accessing the legal system.
Proposed amici believe that those barriers will prevent incarcerated creditors from
asserting their rights in these bankruptcy proceedings.

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The American Civil Liberties Union (“ACLU”) is a nationwide,

nonprofit, nonpartisan organization of more than 1.7 million members dedicated to
protecting the fundamental rights guaranteed by the Constitution and the laws of the
United States. Consistent with that mission, the ACLU established the National
Prison Project (“NPP”) in 1972 to protect and promote the civil and constitutional
rights of incarcerated people. NPP has decades of experience in complex prisoners’
rights class action suits, including multiple cases regarding minimal standards for
correctional health care in jurisdictions where debtor Corizon has operated or
continues to operate.

The Center for Constitutional Rights (“CCR”) is a national, not-for-

profit legal, educational, and advocacy organization dedicated to protecting and
advancing rights guaranteed by the U.S. Constitution and international law. Founded
in 1966 to represent civil rights activists in the South, CCR has litigated numerous
landmark civil and human rights cases. CCR has represented numerous incarcerated
people in state and federal custody across the country challenging their conditions
of confinement. As such, CCR is deeply familiar with the barriers to participation in
court proceedings—bankruptcy or otherwise—faced by incarcerated people and is
committed to dismantling those barriers.

Public Justice is a national public interest legal organization that

specializes in precedent-setting, socially significant civil litigation, with a focus on

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fighting corporate and governmental misconduct. The organization maintains an
Access to Justice Project that pursues litigation and advocacy efforts to remove
procedural obstacles that unduly restrict the ability of consumers, workers, and
people whose civil rights have been violated to seek redress in the civil court system.
Public Justice has engaged in significant advocacy efforts to prevent abuse of the
bankruptcy system to evade the civil justice system, which hinders and delays justice
for survivors of corporate wrongdoing. For example, Public Justice filed an amicus
brief opposing Johnson & Johnson’s use of the Texas Two Step; the Third Circuit
recently dismissed that bankruptcy. In re LTL Mgmt., LLC, 64 F.4th 84 (3d Cir.

Rights Behind Bars (RBB) legally advocates for people in prison to

live in humane conditions and contributes to a legal ecosystem in which such
advocacy is more effective. RBB seeks to create a world in which people in prison
do not face large structural obstacles to effectively advocating for themselves in the
courts. RBB helps incarcerated people advocate for their own interests more
effectively and through such advocacy push towards a world in which people in
prison are treated humanely.

The Human Rights Defense Center (HRDC) is a nonprofit charitable

organization conceived and incorporated in Washington, now headquartered in
Florida, that advocates on behalf of the human rights of people held in state and

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federal prisons, local jails, immigration detention centers, civil commitment
facilities, Bureau of Indian Affairs jails, juvenile facilities, and military prisons.
HRDC engages in state and federal court litigation on prisoner rights issues,
including public records, class actions, and Section 1983 civil rights litigation









correspondents. HRDC’s advocacy efforts include publishing two monthly
publications, Prison Legal News, which covers national and international news and
litigation concerning prisons and jails, as well as Criminal Legal News, which is
focused on criminal law and procedure and policing issues. HRDC also publishes
and distributes self-help and legal reference books for prisoners.

The UC Berkeley Center for Consumer Law & Economic Justice is

the leading law school research and advocacy center dedicated to ensuring safe,
equal, and fair access to the marketplace. Through regular participation as an amicus
before the United States Supreme Court, the federal courts of appeals, and state
appellate courts, the Center seeks to develop and enhance economic protections for
all consumers, especially those who compose particularly vulnerable segments of
the population. The Center appears in this proceeding to underscore the importance
of the bankruptcy process being both fair and accessible to all creditors.

Desirability and Relevance


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The proposed amici curiae brief is also desirable and relevant, in accordance
with how that standard has been interpreted by the Fifth Circuit. The Fifth Circuit
has recognized that amicus curiae briefs are particularly desirable, relevant, and
proper when they support parties that are not adequately represented in these
proceedings and then they present unique information or a unique perspective that
can aid the court. See In re Halo Wireless, Inc., 684 F.3d 581, 596 (5th Cir. 2012).
This brief does both.
First, the primary purpose of the brief is to further advance the arguments of
incarcerated pro se litigants regarding the unique barriers they have face in accessing
and participating in this bankruptcy proceeding. The brief also makes arguments
regarding notice and due process on behalf of both known and unknown incarcerated
creditors that are not aware that these proceedings are happening or do not
understand how their rights will be impacted by these proceedings. The nonprofit
advocacy organizations submitting this brief are well-positioned to represent those
interests that may not otherwise be adequately represented in the bankruptcy
Second, proposed amici present a unique perspective that will aid the court in
effectively safeguarding the rights of incarcerated creditors. These bankruptcy
proceedings present a unique situation where many of the creditors are
unrepresented and currently incarcerated. The perspective of proposed amici will be

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useful because they have decades of experience advocating for the rights of
incarcerated people and are familiar with the barriers that incarcerated people face
in accessing the legal system. Proposed amici have a unique perspective regarding
how those barriers may pose a threat to the due process rights of incarcerated people
in these bankruptcy proceedings.
For the reasons stated above, proposed amici request that this Court grant
this motion.
Dated: February 23, 2024

/s/ Jaqueline Aranda Osorno
Counsel for Proposed Amici Curiae

Public Justice
1620 L St. NW, Suite 630
Washington D.C. 20036
(202) 797-8600


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Certificate of Service
I hereby certify that a true and correct copy of the foregoing motion and
related attachmenta were served on February 23, 2024, via this Court’s electronic
case filing (ECF) system on all parties receiving ECF notices in this case.
/s/ Jaqueline Aranda Osorno
Jaqueline Aranda Osorno