Berk et al v. Moore et al

Filing 81

OPINION AND ORDER denying motions for leave to intervene 51 , 52 , 55 , 56 , 57 , 61 , 69 , 70 , 71 , 72 , 73 ; granting motion for leave to supplement certain motions for joinder 74 , 75 , 76 , 77 , 78 , 79 , 80 . Signed by Magistrate Judge Norah McCann King on 09/22/2011. (sr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

OTTO BERK, et al.,
Plaintiffs,
vs.

Civil Action 2:10-CV-1082
Judge Frost
Magistrate Judge King

ERNIE MOORE, DIRECTOR, et al.,
Defendants.
OPINION AND ORDER
Plaintiffs bring this action for declaratory and injunctive relief
under 42 U.S.C. § 1983, alleging that the retroactive application of
Ohio’s current parole laws and guidelines violate the due process and ex
post facto clauses of the United States Constitution as well as the Ohio
Constitution.
joinder.

This matter is now before the court on eleven motions for

Doc. Nos. 51, 52, 55, 56, 57, 61, 69, 70, 71, 72, 73. Also

before the Court are motions for leave to supplement certain motions for
joinder.

Doc. Nos. 74, 75, 76, 77, 78, 79, 80.

The motions for leave to supplement certain motions for joinder
simply reaffirm the positions adopted in the motions for leave for
joinder.

The motions for leave to supplement are GRANTED.

However, for

the reasons stated infra, the motions for joinder will be denied.
I.

Background
Plaintiffs Otto Berk, Jeff Blair and Don Hall filed the original

Complaint in this action on December 3, 2010.

Complaint, Doc. No. 2.

On May 9, 2011, this Court granted the motions for leave to intervene
filed by Lester Keran, Gary Calhoun, Marshall Banks, and Jack Beatty.
Opinion and Order, Doc. No. 45, p.6.

All current plaintiffs except one

are inmates in Marion Correctional Institution.
inmate in Grafton Correctional Facility.

Plaintiff Beatty is an

All were convicted prior to

1996.
This Court also ordered the original and intervening plaintiffs, who
are proceeding without the assistance of counsel, to file within 30 days
an amended complaint personally signed by each.

Id., p.7; see also Fed.

R. Civ. P. 11(a) (“Every pleading, written motion, and other paper must
be signed . . . by a party personally if the party is unrepresented.”).
On June 1, 2011, six of the seven plaintiffs filed an amended complaint.
Amended Complaint, Doc. No. 53.

Each of these six plaintiffs personally

signed an “affidavit of veracity” that preceded the Amended Complaint,
but only the original three plaintiffs signed the request for relief.
Id., pp. 2, 17.

Plaintiff Beatty did not sign any part of this Amended

Complaint. Id.1 On June 29, 2011, plaintiff Beatty filed signature pages
that included his signature in connection with (1) the request for relief
in the Amended Complaint and (2) a motion for summary judgment filed by
the other six plaintiffs.

Signature of Jack Beatty, Doc. No. 68.

In the months following this Court’s order granting the motions for
leave to intervene, eleven more individuals filed motions for joinder.
Doc. Nos. 51, 52, 55, 56, 57, 61, 69, 70, 71, 72, and 73.

Movants Andrew

Beaman, Bernard Sandella, Thomas Paxton, Raymond Howard, Fred Scott,
Charles McGowan, James Cooper, Eric Davis, and Earl Hill are inmates in
Grafton Correctional Institution.

David Palmer and

Ralph Leading are

inmates in Richland Correctional Institution.

1

On June 22, 2011, the same six plaintiffs filed a motion seeking to
correct or re-amend the Amended Complaint to include three missing signatures
in the request for relief. Plaintiff’s Request Correction for Errors and
Omissions [sic], Doc. No. 64. That motion remains for resolution.

2

II. Analysis
Although the motions are denominated motions for joinder, the Court
concludes that the motions are appropriately considered as motions for
leave to intervene under Fed. R. Civ. P. 24.
A. Intervention of Right
Rule

24(a)

of

the

Federal

Rules

of

Civil

Procedure

governs

intervention of right, providing as follows:
On timely motion, the court must permit anyone to intervene
who:
*

*

*

*

(2) claims 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.
Fed. R. Civ. P. 24(a)(2).

The United States Court of Appeals for the

Sixth Circuit requires that a proposed intervenor satisfy four factors
before establishing a right to intervene under this provision:
(1) the motion to intervene is timely; (2) the proposed
intervenor has a substantial legal interest in the subject
matter of the case; (3) the proposed intervenor’s ability to
protect their interest may be impaired in the absence of
intervention; and (4) the parties already before the court
cannot adequately protect the proposed intervenor’s interest.
Coal. to Defend Affirmative Action v. Granholm, 501 F.3d 775, 779 (6th
Cir. 2007).

“‘The proposed intervenor must prove each of the four

factors; failure to meet one of the criteria will require that the motion
to intervene be denied.’”

United States v. Michigan, 424 F.3d 438, 443

(6th Cir. 2005) (quoting Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir.
1989)).
Even if the movants were able to establish each of the first three
factors, they would fail to establish entitlement to intervention of

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right, because they cannot prove that their interests may be impaired in
the absence of intervention. See Coal. to Defend Affirmative Action, 501
F.3d at 779.

The denial of the motions for leave to intervene would not,

of course, preclude the movants from pursuing their claims in separate
litigation.

Therefore, the Court is not persuaded that the proposed

intervenors’ interests will be impaired absent intervention. Because the
movants cannot establish each of the factors required for intervention
as of right, the Court concludes that, to the extent that the motions
seek leave to intervene as of right pursuant to Rule 24(a), the motions
are without merit.
B.

See United States v. Michigan, 424 F.3d at 443.

Permissive Intervention
Fed. R. Civ. P. 24(b) provides, in pertinent part:
(1) In General. On timely motion, the court may permit anyone
to intervene who:
(A) is given a conditional right to intervene by a
federal statute; or
(B) has a claim or defense that shares with the main
action a common question of law or fact.

Fed. R. Civ. P. 24(b)(1).

Whether an applicant will be permitted to

intervene under Rule 24(b) falls within the sound discretion of the trial
court.

Cf. Coal. to Defend Affirmative Action, 501 F.3d at 784 (“The

denial of permissive intervention should be reversed only for clear abuse
of discretion[.]”) (internal quotation marks and citations omitted). “To
intervene permissively, a proposed intervenor must establish that the
motion for intervention is timely and alleges at least one common
question of law or fact.”
(citing

United States v. Michigan, 424 F.3d at 444

Miller, 103 F.3d at 1248).

Even if a movant establishes that

the motion is timely and alleges a common question of law, the district
court must then take into account “undue delay and prejudice to the

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original parties, if any, and any other relevant factors to determine
whether, in the court’s discretion, intervention should be allowed.” Id.
at 445.
The current plaintiffs do not oppose the motions for leave to
intervene.

Defendants oppose the motions, however, on the basis of two

arguments: (1) “Ex Post Facto claims require highly individualized
determinations

of

law

and

fact”;

and

(2)

“By

its

very

nature,

incarceration will severely limit Plaintiffs’ and Applicants’ ability to
communicate with one another, sign pleadings and prosecute this case in
a fair and efficient manner.” Memorandum in Opposition, Doc. No. 59, pp.
1-2.

In granting the earlier motions for leave to intervene, this Court

rejected the first argument, noting that defendants failed to explain how
such claims require “individualized determinations of law and fact.”
Opinion and Order, p. 6.

Because defendants again fail to provide any

additional details, the Court again rejects that argument here.
However, this Court agrees that granting the motions for leave to
intervene would create undue delay

and potential prejudice to the

original parties, including defendants.

It is clear that there are

already significant communication problems between the plaintiffs.
Plaintiff Beatty failed to sign the Amended Complaint as directed within
the required period of time, see Doc. No. 53, and he did not sign
subsequent filings submitted by the other six plaintiffs, see Doc. Nos.
62, 64, 65.2
interveners,

The pro se status of plaintiffs and the proposed
and

the

fact

that

the

plaintiffs

and

the

proposed

interveners are incarcerated in a number of different institutions, will

2
As noted supra, plaintiff Beatty subsequently submitted his signature
in connection with the Amended Complaint and motion for summary judgment.
Doc. No. 68.

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only aggravate the already-apparent communication problems.

In light of

existing and potential logistical problems presented by an ever-expanding
group of pro se inmate plaintiffs, this Court concludes that there is
sufficient risk of delay and prejudice to the parties to warrant denial
of the motions for leave to intervene.

WHEREUPON, the motions for leave to supplement certain motions for
joinder, Doc. Nos. 74, 75, 76, 77, 78, 79, 80, are GRANTED. The motions
for leave to intervene, Doc. Nos. 51, 52, 55, 56, 57, 61, 69, 70, 71, 72,
and 73, are DENIED.

s/Norah McCann King
Norah McCann King
United States Magistrate Judge
September 22, 2011
(Date)

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