Paynter et al v. Danberg et al

Filing 70

MEMORANDUM ORDER - denying 55 MOTION to Intervene & 56 MOTION to Intervene; denying 57 MOTION for Joinder, 58 MOTION for Joinder, & 59 MOTION for Joinder; denying 60 MOTION to Strike; granting 62 MOTION for Extension of Ti me to Complete Discovery to the extent that, if he has not already done so, the plaintiff shall respond to the defendants' discovery requests on or before February 7, 2014; The motion for an extension of time to respond to the defendants' m otion for summary judgment is stricken ( 69 ). IT IS FURTHER ORDERED that the plaintiff has until on or before 2/24/14 to file a response to the defendants' motion for summary judgment. (See D.l. 67 .) The defendants may file a reply, if any, w ithin fourteen (14) days from the filing of the plaintiffs response. If the plaintiff does not file a response to the defendants' motion for summary judgment, the court will rule on the papers submitted to the court. There will be no extensions. Setting Deadlines: ( Discovery due by 2/7/2014.), Set Briefing Schedule: (Answering Brief due 2/24/2014.). Signed by Judge Gregory M. Sleet on 1/24/14. (mdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

DONALD COLE,
Plaintiff,
v.

COMMISSIONER CARL DANBERG,
et. aI,
Defendants.

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) Civ. Action No. 1O-088-GMS
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MEMORANDUM ORDER
At Wilmington, this

1...,r'tday of ~

,2014, having considered the

pending motions (D.L 55, 56, 57, 58, 59,60,62,69);

I. BACKGROUND
The plaintiff Donald Cole ("Cole"), an inmate at the James T. Vaughn Correctional
Center ("VCC), Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.c. § 1983 and the
Religious Land Use and Institutionalized Persons Act, 42 U.S.c. § 2000cc-1(a). (D.1. 1.) He
appears pro se and was granted permission to proceed in forma pauperis pursuant to 28 U.S.C.

§ 1915. (D.!. 11.) The case proceeds on the second amended complaint filed March 14,2012.
(D.1. 47.)
A scheduling order was entered on January 4,2013. CD.!. 49.) The order provides:
(1) for joinder of other parties and amendment of pleadings on or before March 4,2013; (2) that
discovery will be initiated so that it is completed on or before July 5,2013; and (3) for the filing
of motions for summary judgment on or before September 5, 2013 and an answering brief on or
before September 19,2013.

II. MOTIONS TO INTERVENE AND FOR JOINDER
On June 7,2013, Jerome Sullins alkJa Abdul Wakil ("Sullins"), an inmate at the VCC,
filed a motion for permissive intervention pursuant to Fed. R. Civ. P. 24(b)(1)(B). (D.1. 55.)
Sullins was originally named as a plaintiff, but he was dismissed on April 20, 2010, after he
failed to comply with the February 24, 2010 order (D.I. 4) that required him to submit a request
to proceed in forma pauperis and a certified copy of his prison trust fund account statement. (See
D.l. 11.) Also on June 7, 2013, a similar motion was filed by Abdul-Haqq Shabazz ("Shabazz"),
an inmate at the VCC. (D'!.56.) On the same day, Sullins and Shabazz filed ajoint motion for
permissive joinder of parties pursuant to Fed. R. Civ. P. 20. 1 (D.L 57.) On June 7,2013, Cole,
the sole plaintiff in this case, filed a motion for joinder of claims to consolidate two cases filed in
this court with the instant action: Tessein v. Danberg, Civ. No. 08-809-GMS (D. Del.) and

Desmond v. Phelps, Civ. No. 12-1120-SLR (D. Del.). Tessein v. Danberg was dismissed on
January 31, 2012 for failure to comply with the court's October 5, 2010 order. See Civ. No. 08­
809-GMS at D.I. 60. Desmond v. Phelps is an open case. Finally, on June 13,2013, Charles N.
Schoolfield alkJa Abdul-Malik Abdul-Hakim AI-Faruq ("Schoolfield") and Anthony Coffield
alkJa Abdul Mu'min ("Coffield"), both inmates at the VCC, filed a motion for permissive joinder
of parties pursuant to Fed. R. Civ. P. 20.
The defendants responded to the motions by filing a motion to strike the motions found at
D.l. 55,56,57, and 59 on the grounds that: (1) the motions were untimely having been filed

lAs set forth in Hagan v. Rogers, 570 F.3d 146, 150 (3d Cir. 2009), where the entire
filing fee has not been prepaid, the full filing fee must be assessed against each in forma pauperis
prisoner co-plaintiff permitted to join under Fed. R. Civ. P. 20, as though each such prisoner
were proceeding individually.
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some three months after expiration of the deadline to file motions to join other parties and amend
pleadings; (2) all the motions, save one, were filed by non-parties; (3) the motions fail to comply
with the notice and pleading requirements of Fed. R. Civ. P. 24; (4) Schoolfield's motion is void
of any facts to connect it with the instant litigation; (5) Cole and the other individuals who seek
to intervene or join have offered no compelling reason why permissive intervention or joinder of
the parties is necessary at this juncture of the litigation; and (6) admitting new parties to assert
new claims at this stage of the litigation will cause undue delay in the disposition of the case.

(D.1. 60.)
Schoolfield responds to, and opposes the defendants' motion, on behalf of Cole? (D.1.
61.) He argues that: (l) Cole is a layman with limited knowledge of legal endeavors; (2) all the
facts of the original complaint are applicable and affect each individual who seeks to intervene or
join in the litigation; (3) Sullins was an original plaintiff to this proceeding; (4) the joined parties
will be able to pool their resources to effectively litigate the matter; (5) joinder will save the State
money and time; (6) and joinder will not create undue delay or prejudice in the adjudication in
this matter.
The court finds that good cause has not been shown for the belated filings. A review of
the court file reveals that, despite his status as a non-attorney, Cole has adequately prosecuted his
case. In addition, the motions to join and/or intervene were filed some three months after the

2As a non-attorney, Schoolfield may not act as an attorney for other individuals and may
only represent himself in this court. 28 U.S.C. § 1654; see also Osei-Afriye v. The Medical
College ofPennsylvania, 937 F.2d 876 (3d Cir. 1991) (non-lawyer appearing pro se may not act
as attorney for his children); In the Matter ofChojecki, 2000 WL 679000, at *2 (E.D. Pa. May
22,2000) (citing United States v. Stepard, 876 F. Supp. 214, 215 (D. Ariz. 1994) ("Although a
non-attorney may appear in propria persona on his own behalf, that privilege is personal to him
and he has no authority to appear as the attorney for anyone other than himself.").

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deadline to do so in this case and a mere one month before the discovery deadline. The
dispositive motion deadline has lapsed. To allow joinder at this late date will cause unduly delay
in the disposition of this case. In addition, while Sullins was an original plaintiff in this matter,
he failed to abide by court orders and, when dismissed, did not seek reconsideration of this
matter. Finally, with regard to the consolidation of cases, Tessein v. Danberg, Civ. No. 08-809­
GMS, is closed, and Desmond v. Phelps, Civ. No. 12-1120-SLR, is in a far different posture than
the instant case, the defendants just recently having answered the complaint and discovery having
not yet initiated. For these reasons, the court will deny the motions to intervene and motions for
joinder (D.1. 55, 56, 57, 58, 59) and will deny as moot the motion to strike (D.1. 60).
III. DISCOVERY
The court set a discovery deadline of July 5, 2013. Cole filed a motion for enlargement
of time on July 23, 2013 to respond to the defendants' discovery requests that were served upon
Cole on February 25,2013. (See D.l. 52,62,64.) The defendants responded to the motion on
July 25, 2013, and indicated that they would stipulate, and not object, to providing Cole an
additional fifteen days (until August 9,2013) to comply with the discovery requests. (See D.1.
64.)
The court will grant the motion to the extent that Cole will be given additional time to
respond to the defendants' discovery requests, ifhe has not already done so.
IV. MOTION FOR SUMMARY JUDGMENT
The defendants timely filed their motion for summary judgment on September 5, 2013.
(D.l. 67.) On September 18,2013, Schoolfield filed a motion for an extension of time to respond

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to the motion. (D.1. 69.) The court will not consider, and will strike, the motion inasmuch as
Schoolfield is not a party to this action and he cannot not represent Cole.
To date, Cole has not responded to the motion for summary judgment. He will be given
leave to do so.

V. CONCLUSION
IT IS THEREFORE ORDERED, as follows:
l. The motions to intervene are denied. (D.1. 55, 56.)

2. The motions for joinder are denied. (D.!. 57, 58, 59.)
3. The motion to strike is denied as moot. (D.!. 60.)
4. The plaintiffs motion for an extension of time to complete discovery is granted to the
extent that, ifhe has not already done so, the plaintiff shall respond to the defendants' discovery
/7)

requests on or before~

1-

,2014. (D.l. 62.)

5. The motion for an extension of time to respond to the defendants' motion for summary
judgment is stricken. (D.!. 69.)

Q

IT IS FURTHER ORDERED that the plaintiff has until on or befor~7

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2014 to file a response to the defendants' motion for summary judgment. (See D.l. 67.) The

defendants may file a reply, if any, within fourteen (14) days from the filing of the plaintiffs
response. If the plaintiff does not file a response to the defendants' motion for summary
judgment, the court will rule on the papers submitted to the court. There will be no extensions.

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