Washington a/k/a Willie Simmons v. Denney et al

Filing 238

ORDER by Judge Nanette K. Laughrey. The motions by non-party David Barnett to intervene (Doc. 225 ) and to terminate judgment (Doc. 226 ) are DENIED. A copy of this order will be sent by regular mail to the pro se movant.(Sreeprakash, Netra)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
ECCLESIASTICAL DENZEL
WASHINGTON
Plaintiff,
v.

No. 2:14-cv-06118-NKL

LARRY DENNEY, et al.
Defendants.

ORDER
Pro-se non-party David Barnett seeks to intervene in this action for the purpose of moving
to terminate the Court’s judgment related to the Stipulated Order on Plaintiff’s Motion for
Postjudgment Injunctive Relief. For the reasons explained below, Mr. Barnett’s motions are
denied.
I. Background
On September 21, 2017, upon the parties’ joint motion, the Court entered a stipulated
order for postjudgment injunctive relief, requiring the Missouri Department of Corrections
(“DOC”), on or before April 1, 2018, (i) to amend its smoking policy to prohibit the sale,
possession, and consumption of all tobacco products—except for authorized religious purposes—
inside correctional buildings and on the grounds inside the correctional perimeter in each of the
specified facilities, and (ii) to thereafter enforce that policy. Doc. 215. Mr. Barnett, apparently a
tobacco-user, seeks leave to intervene in order to undo the injunctive relief that the Court ordered.

II. Discussion
a. Motion to Intervene
As discussed below, Mr. Barnett’s motion to intervene is untimely, and even if it were
timely, it would still fail on the merits because of his lack of a cognizable interest.
1. Timeliness
“The issue of the timeliness of a motion to intervene is a threshold issue.” United States v.
Ritchie Special Credit Invs., Ltd., 620 F.3d 824, 832 (8th Cir. 2010). In determining whether a
motion to intervene is timely, the Court must consider: “(1) the extent the litigation has progressed
at the time of the motion to intervene; (2) the prospective intervenor’s knowledge of the litigation;
(3) the reason for the delay in seeking intervention; and (4) whether the delay in seeking
intervention may prejudice the existing parties.”

Planned Parenthood of the Heartland v.

Heineman, 664 F.3d 716, 718 (8th Cir. 2011).
“The general rule is that motions for intervention made after entry of final judgment will
be granted only upon a strong showing of entitlement and of justification for failure to request
intervention sooner.” Id. (quotation marks and citation omitted). Mr. Barnett filed his motion to
intervene in May 2018, more than seven months after the Court entered the order granting the
injunctive relief resulting in the judgment. Compare Docs. 215 (filed September 21, 2017) and
218 (filed October 3, 2017) with Docs. 225 and 226 (both purportedly mailed on May 11, 2018,
postmarked May 16, 2018, and filed May 17, 2018). The entry of judgment followed arms-length
negotiation between the parties, with mediation by a Magistrate Judge, that resulted in a settlement
satisfactory to all parties and the Court.

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a. Reason for the Delay
In his reply, Mr. Barnett explains his delay in moving to intervene as follows. He first
heard rumors of the tobacco ban in September 2017 (presumably just after the Court entered the
order at issue). He asked the offender law clerks to search for case law concerning the rumored
tobacco ban, but “a search of Lexus [sic] revealed no results.”
The MDOC formally notified offenders at least as early as November 2017 that the tobacco
ban would become effective April 1, 2018.1 The November 29, 2017 memorandum that Mr.
Barnett cites does not specify that the DOC facilities’ “transition to tobacco-free” was the product
of a court-ordered stipulation. Doc. 235, at 18 of 19. Mr. Barnett states that he therefore “was left
to conclude that the decision was an exercise of the discretion of MDOC officials, not the result
of this court’s order.” Doc 235, at 8.
Mr. Barnett apparently did not attempt to conduct diligence with respect to the ban until
mid-February, when rumors circulated that Plaintiff was involved in bringing about the tobacco
ban. Mr. Barnett writes, “[t]he movant was initially inclined to disregard such rumors as this was
not the first time the plaintiff had been accused of attempting to remove tobacco from the
MDOC . . . ; but the mere fact that tobacco was being removed was a sufficient motivator for the
movant to start researching again.” Id. Mr. Barnett’s research concluded when he found
Washington v. Blunt, No. 08-4092-NKL, 2011 U.S. Dist. LEXIS 75731, at *6 (W.D. Mo. July 12,
2011), in which the Court enforced a settlement agreement that Mr. Washington had signed in a

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The body of the memorandum begins, “As you were previously notified, the Department facilities
will transition to tobacco-free effective April 1, 2018.” Doc. 235, at 18 of 19 (DOC Memorandum
dated November 29, 2017, Subject: Tobacco Stepdown Plan). This indicates that the inmates
were notified of the anticipated tobacco ban sometime before November 29, 2017.
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case concerning environmental tobacco smoke in prison.

Although that case predated the

injunctive order entered in this case by more than six years, Mr. Barnett claims to have assumed
that the rumors circulating in February 2018 “were misinformation based upon other individuals
having found Blunt as well.” Doc. 235, at 8.
Six weeks later, Mr. Barnett overheard an exchange “between two staff members
referencing the plaintiff’s protective custody status and its relation to the tobacco ban” and this, he
claims, was the “first real indication that the plaintiff had in fact brought litigation that resulted in
the tobacco ban.” Id., at 9. Mr. Barnett then “began inquiring of staff, searching for clarifying
details. He also reached out to a family friend, asking her for help researching Mr. Washington
and his involvement.” Id. That friend then reported back after reviewing online news sources.
Thus, Mr. Barnett claims, he did not know that this case was “the cause of the tobacco ban” until
early April.
In short, Mr. Barnett knew of the tobacco ban at least as early as November 29, 2017, but
he did not conduct serious diligence regarding the source of the ban until April 2018, when “the
offender canteen stopped providing tobacco and other supplies began to dwindle . . . .” Doc. 235,
at 9. Mr. Barnett states that he does not have any newspaper subscriptions or direct access to
PACER, and he had no prior experience with civil litigation or pro se litigation generally.
However, at least as early as September 22, 2017, a simple internet search for the terms “Missouri”
and “tobacco” and “ban” would have revealed that the change in the DOC tobacco policy was
related to a settlement in a court proceeding involving Mr. Washington. See, e.g., Mike Hendricks,
Missouri Prisons to Go Smoke Free After Double-Murderer Wins in Court, THE KANSAS CITY
STAR (September 22, 2017, 5:24 PM) (“Now, after a decade-long legal battle, Washington is
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declaring victory with a settlement that not only protects his health but orders the Missouri prison
system to go smoke-free on or before April 1.”); Chris Kenning, Missouri Murderer Faces Threats
After

Winning

State

Prison

Smoking

Ban

(September

25,

2017,

4:12

PM),

https://www.reuters.com/article/us-missouri-prisons-smoking/missouri-murderer-faces-threatsafter-winning-state-prison-smoking-ban-idUSKCN1C02WS

(“After

the

court

last

week

prohibited the sale, use and possession of tobacco after April 1, 2018, under a settlement
agreement, the Missouri Department of Corrections on Monday said it was sending memos to alert
32,000 inmates to the change.”).
Given all the circumstances, notwithstanding Mr. Barnett’s apparently substantial efforts
to move to intervene in April 2018, when tobacco was no longer available, his explanation for the
nearly eight-month delay does not by itself warrant permitting him to intervene in this case several
months after judgment was entered and months after he received notice of the change in the
tobacco policy.
b. Whether Mr. Barnett Is
Entitled to Intervene Despite Delay
Mr. Barnett argues that, despite the fact that judgment was entered months ago, he is
entitled to intervene, as a matter of law, for three reasons. First, he argues that 18 U.S.C. Section
3626(b)(2) “entitle[s]” him to intervene, and that Section 3626(b)(1)(i) expressly contemplates
intervention up to two years following entry of judgment. But the cited sections do not concern
the circumstances under which an individual may be permitted to intervene. Instead, they concern
the circumstances under which one who has already intervened may move to terminate a judgment.
Compare 18 U.S.C. 3626(b) (permitting “intervener,” not a potential or prospective intervener,
and not a party seeking to intervene, to seek to terminate judgment) with, e.g., Am. Civil Liberties
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Union of Minnesota v. Tarek ibn Ziyad Acad., 643 F.3d 1088, 1092 (8th Cir. 2011) (explaining
what “a party seeking to intervene must establish” and explaining that the “prospective
intervenor’s knowledge of the litigation” is relevant) (emphases added); F.T.C. v. Johnson, 800
F.3d 448, 452 (8th Cir. 2015) (explaining that “we require the party seeking to intervene to make
a strong showing of inadequate representation”). An intervener is one who has been granted leave
to intervene. Section 3626’s discussion of the rights of one who is an “intervener” thus is irrelevant
to the threshold question of whether Mr. Barnett should become an intervener.
Second, Mr. Barnett appears to suggest that the “stage-of-litigation prong” does not support
a finding of untimeliness. But, to the contrary, the Eighth Circuit has repeatedly held that
timeliness ought to be determined by reference to “the extent the litigation has progressed at the
time of the motion to intervene . . . .” See, e.g., In re Wholesale Grocery Prod. Antitrust Litig.,
849 F.3d 761, 767 (8th Cir. 2017).2
Third, Mr. Barrett argues that the passage of nearly eight months since the judgment is “not
relevant to the consideration of timeliness.” But the cases he cites do not support his position. The
Sixth Circuit’s statement in U.S. v. City of Detroit that “[t]he mere passage of time . . . is not
particularly important to the progress-in-suit factor” is not equivalent to a statement that the
passage of time is not relevant to timeliness. The progress-in-suit factor is merely one component
of the timeliness analysis. Furthermore, the City of Detroit case was “[]not expected to end any

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Mr. Barnett also cites a Ninth Circuit case for the proposition that a motion to intervene is timely
even after lengthy negotiations when the motion is “filed promptly after interveners first had notice
government may not have adequately represented their interests,” but it is not clear that Mr. Barnett
moved promptly to intervene in this case. More fundamentally, in the Ninth Circuit case, when
the movant sought to intervene, the settlement had not been finalized, and no judgment had issued.
See United States v. Carpenter, 298 F.3d 1122, 1125 (9th Cir. 2002).
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time soon” when the non-party moved to intervene. Similarly, in Sierra Club v. Espy, 18 F.3d
1202 (5th Cir. 1994), the non-party moved to intervene within two months of the issuance of the
preliminary injunction in that case, and no judgment had been entered at that time. Id., 1204. The
cases that Mr. Barnett cites establish that, where there is good reason for delay, untimeliness does
not necessarily bar intervention where no judgment has been issued. They do not help Mr. Barnett,
who moved to intervene more than seven months after entry of judgment in this case.
*

*

*

In light of the fact that the parties vigorously litigated whether injunctive relief was
appropriate, then negotiated, at arms’ length, and with the mediation of a Magistrate Judge, a
settlement that resulted in the Court’s so-ordering of the injunctive relief, and the fact that
judgment was entered several months before Mr. Barnett sought to intervene, the Court finds—
despite Mr. Barnett’s excellent briefing—that the post-judgment motion to intervene is untimely.
See Am. Civil Liberties Union of Minnesota v. Tarek ibn Ziyad Acad., 643 F.3d 1088, 1095 (8th
Cir. 2011) (affirming denial of motion to intervene based on untimeliness); Heineman, 664 F.3d
at 718 (8th Cir. 2011) (“NuLife failed to justify its delay in light of its prior knowledge of the case,
and the parties would be prejudiced because final judgment on their settlement had already been
entered.”); see also Nat’l Ass’n for Advancement of Colored People v. New York, 413 U.S. 345,
365, 93 S. Ct. 2591, 2603 (1973) (If [the motion to intervene] is untimely, intervention must be
denied. Thus, the court where the action is pending must first be satisfied as to timeliness.”).
2. Merits of the Motion to Intervene
Even if Mr. Barnett’s motion were deemed timely, he does not qualify to intervene because
he lacks a legally cognizable interest. To intervene, whether as of right or at the Court’s discretion,
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the movant must have a legally cognizable interest. See, e.g., Liddell v. Special Admin. Bd. of
Transitional Sch. Dist. of City of St. Louis, No. 16-3437, 2018 WL 3301434, at *3 (8th Cir. July
5, 2018) (“[T]he intervenor must show he or she suffered ‘an invasion of a legally protected
interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’”) (citation omitted); Old Dominion Elec. Coop. v. Fed. Energy Regulatory Comm’n,
892 F.3d 1223, 1233 (D.C. Cir. 2018) (holding that “the prospective intervenor must establish
injury-in-fact to a legally protected interest,” and denying motion to intervene because movant
“ha[d] no legally cognizable interest”).
Mr. Barnett seeks to challenge a stipulation between the plaintiff and the DOC that bans
tobacco products, and which the Court so-ordered. Mr. Barnett claims that he has experienced
“anxiety and distress” because of (1) the removal of tobacco—presumably because he himself uses
tobacco products, and (2) increased violence due to staffing shortages, exacerbation of other
inmates’ mental health disorders, and an increase in opioid usage and the black-market trade of
tobacco—all purportedly resulting from the tobacco prohibition.
As a preliminary matter, Mr. Barnett does not have a legally cognizable interest in using
tobacco. “There is no constitutional right to smoke in prison.” Grass v. Sargent, 903 F.2d 1206,
1206 (8th Cir. 1990) (affirming dismissal of claim that a state department of correction’s
prohibition of smoking in prison visitation area violated plaintiff’s constitutional rights); see also
Gallagher v. City of Clayton, 699 F.3d 1013, 1018 (8th Cir. 2012) (“The alleged right to smoke in
public is not so deeply rooted in the Nation’s history and tradition, and it is not implicit in the
concept of ordered liberty. As such, it does not fall within the ‘liberty’ that is specially protected
by the Due Process Clause.”). The tobacco prohibition at issue here “does not deprive inmates of
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a minimal civilized measure of life’s necessities,” and therefore does not implicate Mr. Barnett’s
Eighth Amendment rights. Grass, 903 F.2d at 1206. Mr. Barnett does not identify—and the Court
is not aware of—any other basis for finding a right to use tobacco. Because he does not have a
right to use tobacco in prison, Mr. Barnett does not have a legally cognizable interest. See id. (“We
agree with the district court that the complaint has no basis in law and is nothing more than a claim
of infringement of a legal interest that does not exist.”).
Second, Mr. Barnett’s claim that the change in the DOC’s tobacco policy has increased
violence in Missouri prisons is speculative and tenuous. Notwithstanding Mr. Barnett’s assertion
that he was threatened with violence by a fellow inmate who later blamed the threat on nicotine
withdrawal, and Mr. Barnett’s accounts of a riot and staff-on-staff assault that he attributes to the
tobacco prohibition, the alleged injuries cannot be described as “fairly traceable” to the tobacco
policy. United States v. Metro. St. Louis Sewer Dist., 569 F.3d 829, 837 (8th Cir. 2009) (finding
no standing to intervene where proposed intervener “ha[d] not adequately alleged that it will suffer
a concrete and particularized injury” and “d[id] not even attempt to establish that its injury is fairly
traceable to the challenged action and that its injury is likely to be redressed by a favorable
decision”). Furthermore, DOC is in the best position to seek redress if it is, as Mr. Barnett claims,
having trouble staffing its prisons or maintaining order because of the tobacco ban.
Because Mr. Barnett has no legally cognizable interest to safeguard in this case, the Court
cannot permit him to intervene.
b. Motion to Terminate Judgment
Because Mr. Barnett may not intervene, his motion to terminate the judgment also is
denied.
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III. Conclusion
For the reasons discussed above, Mr. Barnett’s motions to intervene and to terminate the
judgment are denied.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: July 16, 2018
Jefferson City, Missouri

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