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. This matter is now before the court on eleven motions for

joinder. 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. Plaintiff Beatty is an

inmate in Grafton Correctional Facility. All were convicted prior to

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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.

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

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

(citing 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 The pro se status of plaintiffs and the proposed

interveners, 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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