United States District Court, W.D. Missouri, St. Joseph Division
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE
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.
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.
Motion to Intervene
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.
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.
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
Reason for the Delay
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.”
MDOC formally notified offenders at least as early as
November 2017 that the tobacco ban would become effective
April 1, 2018. 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
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 ...