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Washington v. Denney

United States District Court, W.D. Missouri, St. Joseph Division

July 16, 2018

LARRY DENNEY, et al. Defendants.



         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.

         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 case concerning environmental tobacco smoke in prison. Although that case predated the injunctive order ...

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