Barrett et al v. McDonald et al
MEMORANDUM ORDER denying as moot re 51 MOTION to Expedite filed by Stanley Yelardy, denying 16 MOTION for Joinder, and granting 32 MOTION to Seal. Signed by Judge Leonard P. Stark on 1/16/2015. (rpg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
THEODORE BARRETT, et al.
LAWREN CE MCDONALD MD, et al.
C.A. No. 14-742-LPS
Pending before the Court are Movant Stanley Y elardy' s Motion for Permissive Joinder,
Motion to Seal, and Motion for Expedited Ruling. (D.I. 16; D.I. 32; D.I. 51) For the reasons set
forth below, the Court will deny Y elardy's Motion for Permissive Joinder, grant Yelardy's
Motion to Seal, and deny as moot his Motion for Expedited Ruling. 1
On May 9, 2014, Plaintiffs Theodore Barrett, Ronald Keis, Wilbur Medley, Victor
Talmo, Raymond Brown, Gene Schultz, David DeJesus, Derrick Jackson, and Joseph Vincent
filed a complaint in the Superior Court of the State of Delaware in and for New Castle County
alleging various claims under 42 U.S.C. § 1983. (D.I. 1 at~ 3) Each claim arises out of alleged
sexual abuse by Defendant Lawrence McDonald during medical examinations of the Plaintiffs
while Plaintiffs were inmates at Sussex Correctional Institution ("SCI"). (D.I. 1, ex. 1 at~ 1)
The original complaint named six Defendants: McDonald, Correct Care Solutions, LLC
("CCS"), Jill Mosser, G.R. Johnson, Linda Valentino, and Lamont Hammond. (Id.) On June 13,
0ther motions are pending. (See D.I. 22; D.I. 24; D.I. 45) The Court has scheduled oral
argument for February 17, 2015. (D.1. 50)
Defendants Mosser and CCS removed the action to this Court. (D.I. 1)
On July 31, 2014, Movant Stanley Yelardy filed a Motion for Permissive Joinder, seeking
to join this suit. (D.I. 16) Yelardy alleges sexual abuse by McDonald during medical
examinations in violation of 42 U.S.C. § 1983. (Id.
1) Unlike the Plaintiffs, however,
Yelardy was not an inmate at SCI during the alleged abuse; he was incarcerated at the James T.
Vaughn Correctional Center ("JTVCC"). (Id.) The claim Yelardy seeks to press would be
against three or four of the Defendants in the instant action - McDonald, Mosser, and CCS, and
possibly G.R. Johnson2 - but would also add four new Defendants who are not part of the instant
action (at least Perry Phelps, the warden at JTVCC, and three defendants who are identified only
by their roles at JTVCC: the Health Services Administrator, the deputy warden who oversaw
medical, and the major who oversaw medical). (Id.
8-9) Yelardy's motion is opposed by
Defendants Johnson, Valentino, and Hammond. (D.I. 19) Plaintiffs take no position. (D.I. 18)
On August 11, 2014, after Y elardy had filed his Motion for Permissive J oinder, Plaintiffs
filed an Amended Complaint. (D.I. 20) This Amended Complaint added thirteen additional
Plaintiffs and five additional Defendants. (D.I. 14) Each of the additional Plaintiffs, like the
original Plaintiffs, claimed sexual abuse by McDonald during medical examinations while they
were inmates at SCI. (Id.
15-27) All of the claims against the additional Defendants also
arose out of acts allegedly occurring at SCI. (See generally id.
On October 8, 2014, Y elardy filed a Supplemental Reply to his Motion for Permissive
Joinder, which included an Affidavit of Historical Facts of Medical Events. (D.I. 31) Yelardy
In his reply brief, Y elardy also indicates he would name G.R. Johnson as an additional
Defendant. (D .I. 21 at 3)
filed a Motion to Seal on the same date, requesting that his affidavit be sealed because it
contained personal medical information. (D.I. 32) The Motion to Seal is unopposed and will be
granted. On December 10, 2014, Yelardy filed Motion for Expedited Ruling, requesting a ruling
on his Motion for Permissive Joinder. (D.I. 51)
LEGAL ST AND ARDS
Motion for Permissive Intervention
Pursuant to Federal Rule of Civil Procedure 24(b )(1 )(B), the Court may permit anyone to
intervene who "has a claim or defense that shares with the main action a common question of
law or fact." "Whether to grant permissive intervention under Rule 24(b ), as the doctrine's name
suggests, is within the discretion of the district court .... " Brody v. Spang, 957 F.2d 1108, 1124
(3d Cir. 1992). To establish that intervention is warranted under Rule 24(b), the intervenor must
demonstrate: ( 1) an independent basis for subject matter jurisdiction, (2) a timely motion, and
(3) a claim or defense that has a common question oflaw or fact with the primary litigation. See
In re Linerboard Antitrust Litig., 333 F. Supp. 2d 333, 338-39 (E.D. Pa. 2004).
Motion to Seal
A party seeking the sealing of documents has the burden of demonstrating that "good
cause" exists to maintain protection of its information. See Pansy v. Borough of Stroudsburg, 23
F .3d 772, 786-87 (3d Cir. 1994). "Good cause is established on a showing that disclosure will
work a clearly defined and serious injury to the party seeking closure." Id. at 786 (internal
quotation marks and citation omitted).
Motion for Permissive Joinder
Although Yelardy identifies Rules 18 and 19 as the basis for "permissive joinder" (D.I. 16
at 1), a third party cannot move to be joined as a plaintiff, but instead, must move for
intervention under Rule 24. See Paine, Webber, Jackson & Curtis, Inc. v. Merrill Lynch, Pierce,
Fenner & Smith Inc., 564 F. Supp 1358, 1371 (D. Del. 1983) (explaining that third party's
motion on his own behalf to join as plaintiff should be treated as motion for intervention under
Rule 24). Yelardy's motion does not identify any basis for intervention as of right under Rule
24(a) or a conditional right to intervene under Rule 24(b)(l)(A). Accordingly, the Court treats
Y elardy' s request as a motion for permissive intervention pursuant to Rule 24(b )(1 )(B).
The first two requirements to demonstrate that permissive intervention is warranted are
satisfied: this Court has subject matter jurisdiction over Y elardy' s § 1983 claim and his motion
was timely. See In re Linerboard Antitrust Litig., 333 F. Supp. 2d at 338-39. With respect to the
third requirement, there are, in some respects, common questions of law and fact, as Y elardy
accuses McDonald of the same types of abusive conduct of which Plaintiffs also accuse
McDonald. But there are many distinct facts that set Y elardy' s claims apart from those of
Plaintiffs. Most prominent is the fact that all of the acts Plaintiffs allege occurred at SCI, while
all of the acts Y elardy alleges occurred at JTVCC. Allowing Y elardy to intervene, then, would
expand this case into a second facility and require the addition of more Defendants. Although
Yelardy alleges four overlapping defendants -
McDonald, CCS, Mosser, and G.R. Johnson -
is unclear how Mosser or G.R. Johnson were even allegedly involved with JTVCC, as it is
alleged in the Amended Complaint that they were employed at SCI. (D.I. 20 at ilil 29-32, 38)
Additionally, each act of abuse against each inmate is a separate act, requiring its own proof.
Also, Y elardy has no interest in the resolution of Plaintiffs' claims.
There may be some common questions of law relating to liability under § 1983 or state
tort law - such as those raised in the pending motions to dismiss (D.I. 22; D.I. 24) - as between
Plaintiffs' case and Y elardy' s case. But, for any claims that survive the dismissal motion, the
ultimate issue ofliability will tum on different evidence for the Defendants who worked at SCI
and those who worked at JTVCC.
Under the circumstances, the Court concludes that the appropriate exercise of its
discretion is to deny intervention, which would here involve an expansion of the case to a second
facility and with additional defendants. 3
Motion to Seal
Y elardy' s motion to seal is unopposed. The affidavit describes Y elardy' s medical history
in detail. It is self-evident that disclosure of such material could "work a clearly defined and
serious injury to the party seeking closure." Pansy, 23 F.3d at 786.
The Court does not need to address whether Y elardy' s claims are barred by the statute of
limitations, although they may be (see D.I. 19 at 3), or the fact that permitting him to intervene
would have the effect of allowing him to press his claims without paying the filing fee or
obtaining in forma pauperis status. If Y elardy chooses to file his own case, the Court will, if
necessary, address issues such as these in the context of Y elardy' s case. See generally
Gerhardson v. Gopher News Co., 698 F.3d 1052, 1056 (8th Cir. 2012) (holding that statute of
limitations is not tolled during pendency of motion to intervene that is denied).
Accordingly, for the reasons stated above,
IT IS HEREBY ORDERED that:
Movant Stanley Yelardy's Motion for Permissive Joinder (D.I. 16) is DENIED.
Movant StanleyYelardy's unopposed Motion to Seal (D.I. 32) is GRANTED.
Movant Stanley Yelardy's Motion for Expedited Ruling (D.I. 51) is DENIED AS
January 16, 2015
UNITED STATES DISTRICT JUDGE
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