Jordan v. Pugh ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 8, 2017
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
MARK JORDAN,
Plaintiff - Appellee,
v. No. 17-1280
(D. C. No. 1:02-CV-01239-MSK-KLM)
MICHAEL V. PUGH; J. YORK; R. E. (D. Colo.)
DERR; B. SELLERS; STANLEY
ROWLETT,
Defendants - Appellees.
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FRANCIS SCHAEFFER COX,
Movant - Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It may
be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Francis Schaeffer Cox, a federal prisoner appearing pro se, appeals from the
district court’s denial of his motion to intervene in a case previously filed by another
inmate that is now closed. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
affirm.
I
In 2002, a federal inmate named Mark Jordan, who at the time was housed in the
Administrative Maximum Unit in Florence, Colorado, filed a lawsuit challenging the
constitutionality of a prison regulation, 28 C.F.R. § 540.20(b), that forbid inmates from
“act[ing] as a reporter or publish[ing] under a byline.” The Bureau of Prisons (BOP)
interpreted the regulation as “prohibit[ing] inmates from publishing under a byline online
in the ‘news media,’” which the BOP defined “as newspapers, news magazines, national
and international news services, and TV and radio news programs.” Jordan v. Pugh, 504
F. Supp. 2d 1109, 1112 (D. Colo. 2007). The case proceeded to a bench trial and the
district court found in Jordan’s favor, concluding that the challenged regulation
“violate[d] the First Amendment rights of Mr. Jordan, other inmates in federal
institutions, and the press.” Id. at 1126. As part of the relief granted, the district court
enjoined the BOP “from punishing any inmate for violation of” the challenged regulation.
Id. Judgment in the case was entered on August 9, 2007. There was no appeal from the
judgment and the case was closed.
On May 23, 2017, appellant Cox, a federal inmate incarcerated at the United States
Penitentiary in Marion, Illinois, filed a motion to intervene, both as of right and
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permissively. In his motion, Cox alleged that in late 2016, the BOP had disciplined him
for violating the regulation that was declared unconstitutional in Jordan. Cox in turn
alleged that he was seeking to enforce against the BOP the injunction that had been
entered in Jordan. In support of his motion, Cox submitted copies of BOP documents
indicating that a prison disciplinary hearing officer (DHO) sanctioned him with
disallowance of good conduct time credits and the temporary loss of commissary, phone
and email privileges for “hav[ing] committed the prohibited act of Use of the Telephone
for Abuses Other Than Criminal Activity, Code 297.” ROA, Vol. 1 at 92. In support, the
DHO found that on November 3, 2016, Cox placed a telephone call to a pastor who was
in the midst of conducting a regularly scheduled live internet program and, in turn, spoke
with the pastor as part of the program that was broadcast to the internet audience.
On June 16, 2017, the district court summarily denied Cox’s motion, noting that
there was “no currently-pending action in which [he] could intervene.” Id. at 97.
On July 18, 2017, Cox filed a motion for reconsideration of the district court’s
ruling. On July 19, 2017, the district court denied his motion for reconsideration by a
text-only docket entry that stated:
Mr. Cox’s reliance upon Floyd v. Ortiz, 300 F.3d 1223 (10th Cir. 2002), is
misplaced for several reasons. Unlike in that case, the judgment entered
here in favor of Mr. Jordan was not intended to be enforceable by inmates
other than Mr. Jordan, nor did the Court retain jurisdiction over the matter
in anticipation of further proceedings. To the extent Mr. Cox believes that
his First Amendment rights are being infringed by the Federal Bureau of
Prisons, he is free to commence his own lawsuit assering [sic] as much.
Dist. Ct. Docket No. 415.
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Cox filed a timely notice of appeal.
II
An order denying intervention is a final and appealable order if it prevents a
putative party from participating in litigation. Equal Emp’t Opportunity Comm’n v. PJ
Utah, LLC, 822 F.3d 536, 539 (10th Cir. 2016). We review de novo a district court’s
denial of a motion to intervene as of right under Federal Rule of Civil Procedure 24(a).
Id. We review for abuse of discretion a district court’s denial of a motion to permissively
intervene under Federal Rule of Civil Procedure 24(b). Id.
Intervention is governed generally by Federal Rule of Civil Procedure 24. As
outlined in Rule 24, the right to intervene, either unconditionally or conditionally, can be
afforded by a federal statute. Fed. R. Civ. P. 24(a)(1) and (b)(1)(A). No such right is at
play in this case, however, and Cox does not assert otherwise. Rule 24 also requires a
district court to permit intervention if the movant “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.” Fed. R. Civ. P. 24(a)(2). Again, however, no such interest is at issue in this
case.
For Cox, who is neither a government officer or agency as required by Federal
Rule of Civil Procedure 24(b)(2), that leaves only one other avenue for intervention: that
he “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)(B). Although Cox’s motion alleged on its face that his
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claim against BOP officials shared a common question of law with Jordan, i.e., the
constitutionality of 28 C.F.R. § 540.20(b), the BOP documents he submitted in support of
his motion belie that allegation. Those documents indicate that Cox was not punished for
violating § 540.20(b), but rather for violating an entirely different disciplinary code
provision. Thus, his claim against BOP officials does not, in fact, share with Jordan a
common question of law or fact.
Thus, in sum, we conclude that Cox failed to assert a valid basis for intervening in
Jordan.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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