Warner et al v. Gross et al

Filing 357

ORDER granting 334 Defendants' Motion to Strike or Dismiss Pro Se Complaint. 326 Wade Lay's Pro Se Amended Complaint is stricken. 342 Wade Lay's Motion for Injunctive Relief is also stricken. Wade Lay remains a pro se plaintiff in this action. Signed by Honorable Stephen P. Friot on 10/1/2020. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RICHARD GLOSSIP, et al.,
Plaintiffs,
-vsRANDY CHANDLER, et al.,
Defendants.

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Case No. CIV-14-0665-F

ORDER
Defendants move to strike or dismiss the amended complaint (doc. no. 326)
that was separately filed by Wade Lay on July 6, 2020. Doc. no. 334. Mr. Lay filed
a response brief. Doc. no. 354, addendum at doc. no. 356. Defendants did not file
a reply brief. For the reasons stated below, defendants’ motion will be granted and
Mr. Lay’s amended complaint will be stricken.
This order also addresses Mr. Lay’s motion for injunctive relief (doc. no. 342),
which will be stricken.1
Motion to Strike Mr. Lay’s
Separately-filed Amended Complaint
Defendants argue that Mr. Lay’s separately-filed amended complaint should
be stricken or dismissed: 1) because his pleading exceeds the scope of leave to
intervene as granted to Mr. Lay; 2) because his pleading disavows the legal theories
alleged by the plaintiffs collectively in the third amended complaint; 3) because his
pleading refers to habeas relief for Mr. Lay (a theory of relief disavowed by the other
1

Defendants were permitted to delay a response to this motion in case this order should render the
motion moot, which it does. Doc. no. 348.

plaintiffs) and does not present a habeas claim in the manner required by the rules
governing habeas cases; and 4) because his pleading does not share a common
question of law or fact with the claims alleged by the plaintiffs collectively in the
third amended complaint.
Before addressing these arguments, the court sets out some procedural
background.
On March 12, 2020, the court granted Mr. Lay’s motion for leave to intervene
in this action as one of many named plaintiffs. The motion was made orally through
Mr. Wade’s counsel at the time, Jim Stronski. Doc. no. 305 (minute sheet).2 As the
court understood it, the premise of Mr. Lay’s motion to intervene was that Mr. Lay,
as a person who had been sentenced to death by the State of Oklahoma, and as a
person who was represented by the same counsel that represented other plaintiffs in
this action, sought to join the claims alleged by other plaintiffs.
Rule 24(b), Fed. R. Civ. P., addresses permissive intervention.3 Because the
court understood that Mr. Lay merely wished to assert the same claims and theories
as the other plaintiffs, there was no reason to require a written motion for leave to
intervene and there was no reason to require Mr. Lay to identify the claims he wished
to allege by filing a separate pleading.4 Rule 24(b)(3) requires the court to consider
whether the intervention will unduly delay or prejudice the adjudication of the
2

At the scheduling conference, Mr. Stronski stated that Mr. Lay had recently hired him as counsel
in this action.

3

No rule was identified as the basis of the motion to intervene, but the court believes Rule 24(b)
is the best procedural fit.

4

Permissive intervention under Rule 24(b) lies within the discretion of the court. Courts have, at
times, been permitted a certain amount of leeway with procedural formalities. As stated in Wright,
Miller & Kane, Federal Practice and Procedure: Civil 3d § 1914 (2007): “If the intervenor is
content to stand on the pleading an existing party has filed, it is difficult to see what is
accomplished by adding to the papers in the case a new pleading that is identical in its allegations
with the one that is already in the file. Thus, other courts have so held and have allowed adoption
of an existing pleading.”

2

original parties’ rights. Given what the court understood to be the fundamental
premise for Mr. Lay’s motion, it was clear to the court, without need of any
discussion at the hearing, that permitting Mr. Lay to intervene would not delay these
proceedings and would not prejudice the other parties. Accordingly, the court
granted Mr. Lay leave to intervene with the understanding that Mr. Lay, a party
represented by counsel, sought to join in the prosecution of the claims asserted by
the other plaintiffs.
That was how things stood until July 6, 2020. On that date, plaintiffs, with
leave of court, filed their third amended complaint. Doc. no. 325. As expected, the
third amended complaint includes Mr. Lay among the plaintiffs. Doc. no. 325, ¶¶1,8.
Also on July 6, 2020, however, the court received a document from Mr. Lay
entitled “amended complaint,” purportedly filed by him pro se despite the fact that,
as far as the record showed at the time, Mr. Lay was represented by counsel. Doc.
no. 326. For that reason, the court conceivably could have stricken Mr. Lay’s
separately-filed amended complaint. It did not do so because correspondence
attached to Mr. Lay’s pleading (doc. no. 326-2) indicated the status of Mr. Lay’s
representation was uncertain. Approximately two weeks after receiving Mr. Lay’s
separate pleading, Mr. Lay’s counsel formally withdrew from representation of Mr.
Lay (doc. no. 327), stating that Mr. Lay had terminated the representation by a letter
dated June 22, 2020.
Given that background, the question is whether Mr. Lay’s separately-filed
amended complaint should be stricken or dismissed as defendants request. For the
reasons set out below, the court will strike Mr. Lay’s pleading. To be sure, there are

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other problems with Mr. Lay’s pleading,5 but it will be stricken on the ground that it
exceeds the premises upon which leave to intervene was granted, as explained next.
As defendants point out, Mr. Lay’s separately-filed amended complaint does
not track or even resemble the claims and theories alleged by the plaintiffs
collectively in the third amended complaint. Moreover, his pleading is inconsistent
with the third amended complaint in several ways. He alleges that the Eighth
Amendment, which is fundamental to the third amended complaint, is “misapplied”
to the subject of execution protocols. Doc. no. 326, p. 16 of 17.6 His pleading refers
repeatedly to his underlying conviction7 despite the fact that habeas relief is
expressly disavowed by the plaintiffs in their third amended complaint.8 Mr. Wade’s
pleading also refers to his conditions of confinement, another basis for relief which
is disavowed in the third amended complaint.

5

Mr. Lay’s separately-filed amended complaint is not a plain statement of his claims as required
by Rule 8, Fed. R. Civ. P. Mr. Lay’s pleading includes 17 pages (doc. no. 326), as well as 91
pages of “legal argument” (doc. no. 326-1). Within just the first 17 pages, there are references to
Alexander Hamilton and the Federalist No. 28, Thomas Jefferson, the history of European
monarchs using criminal prosecutions against their political enemies, Article III jurisdictional
mandates, the Declaration of Independence, King George, and Mr. Lay’s “habeas corpus affairs.”
6

His specific allegation is that: “this court must allow a broader scope, as it applies to the Eight
[sic] Article of Amendment, than the misapplied subject matter of execution protocols.” Doc. no.
326, p. 16 of 17. (That said, at other times, and in other filings, Mr. Lay appears to rely on the
Eighth Amendment.)
7

His pleading refers to his “unfair trial” (see, e.g., doc. no. 326, p. 14 of 17), and to state actors’
interference in his “habeas corpus affairs….” Id. at p. 15 of 17. The “legal arguments” portion of
his pleading states, “It is inconceivable that the courts of the United States could focus their
attention upon the ‘cruel and unusual punishments inflicted’ phrase found in the Eighth Article of
Amendment of the United States Constitution, limiting its application to the method, or protocols
of an execution, while ignoring the primary purpose of the provision which bears a nexus to the
prohibitive writ of habeas corpus clause.” Id. at p. 1 of 91.
8

Doc. no. 325, ¶ 7 (“This action is not, and should not be treated as, a successor habeas corpus
petition. Plaintiffs are not challenging through this action the validity of their convictions or death
sentences.”); ¶ 19 (“this action does not challenge prison conditions….”).

4

In short, the issues raised in Mr. Lay’s separately-filed amended complaint
make it plain that he seeks to prosecute claims that differ radically from those which
he originally, with leave of court, sought to assert in this case. The fundamental
premise upon which Mr. Lay moved for and was granted leave to intervene as one
more plaintiff in this action no longer exists. The court is not required to permit Mr.
Lay to hijack this action by alleging issues at odds with those raised by the plaintiffs
collectively.9 That this is so is apparent from the directive in Rule 24(b) which
requires the court to consider whether the intervention will unduly delay or prejudice
the adjudication of the original parties’ rights. Accordingly, defendants’ motion will
be granted and Mr. Lay’s separately-filed amended complaint will be stricken.
Mr. Lay’s Motion for Injunctive Relief
Mr. Lay moves for injunctive relief based on his conditions of confinement.
Doc. no. 342. The motion, for example, complains about the ways in which Mr.
Lay’s prison unit operates, arguing its operation is at odds with the purpose of the
building’s architectural specifications. Id. at 3. The motion argues that the court is
obliged to examine the conditions in which Mr. Lay is being held, including
conditions impacted by COVID-19. Id. at 5. The motion complains that excessive
security protocols have been put in place, such as a requirement that prisoners be
escorted by two officers in an area designed to permit prisoners to move about
without escorts. Id. at 6. The motion argues that Mr. Lay is being deprived of
essential rights, such as the right to shower and enjoy equal access to clothing and
other items. Id. at 8. The motion also refers to the alleged theft of an MP4 player
by an Oklahoma State Penitentiary employee. Id.

9

See, e.g., United States v. Columbia Gas & Electric Corp., 27 F. Supp. 116, 120 (D. Del. 1939)
(permissive intervention denied where the prayers of the proposed petition of intervention “diverge
sharply” from the subject matter of the supplemental complaint.”).

5

The pleadings define the issues for trial. The operative complaint is the third
amended complaint filed by all of the plaintiffs; that complaint raises no conditions
of confinement issues, much less any that could support the type of injunctive relief
sought by Mr. Lay. The motion seeks relief outside the pleadings, and it will be
stricken on that ground.
Conclusion
After careful consideration, defendants’ motion to strike is GRANTED (doc.
no. 334), and Mr. Lay’s separately-filed amended complaint (doc. no. 326) is
STRICKEN.
Mr. Lay’s motion for injunctive relief (doc. no. 342) is also STRICKEN.
Mr. Lay remains a pro se plaintiff in this action. See, doc. no. 325.
IT IS SO ORDERED this 1st day of October, 2020.

14-0665p081.docx

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