USCA11 Case: 20-14152 Date Filed: 01/06/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14152
Non-Argument Calendar
____________________
DAVID CHARLES SUSSMAN,
Plaintiff-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:20-cv-00367-WS-HTC
____________________
USCA11 Case: 20-14152 Date Filed: 01/06/2022 Page: 2 of 5
2 Opinion of the Court 20-14152
Before JILL PRYOR, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
David Sussman, a Florida prisoner proceeding pro se, ap-
peals the district court dismissal of his civil rights complaint under
28 U.S.C. § 1915(g), as well as the denial of his motion to join his
case with Harvard v. Inch, 4:19-cv-212 (N.D. Fla. 2019) (hereinafter
“Harvard”), a pending action in the same district. Sussman raises
two contentions on appeal. First, Sussman contends that the dis-
trict court erred in denying his motion to join his case with Har-
vard. Secondly, he contends that the district erred in concluding
that his complaint did not allege an imminent danger of serious
physical injury under
28 U.S.C. § 1915(g).
We will address each contention in turn.
I.
A district court’s decision regarding the indispensability of
parties is normally reviewed for abuse of discretion. United States
v. Rigel Ships Agencies, Inc.,
432 F.3d 1282, 1291 (11th Cir. 2005).
Likewise, a district court’s denial of a motion for joinder is nor-
mally reviewed for abuse of discretion. Swan v. Ray,
293 F.3d 1252,
1253 (11th Cir. 2002). “The district court has broad discretion to
join parties or not and that decision will not be overturned as long
as it falls within the district court’s range of choices.”
Id. Even if
claims are properly joined, a district court retains discretion to
sever distinct and separate claims. See Fed. R. Civ. P. 21, 42(b).
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20-14152 Opinion of the Court 3
We also generally review a denial of permissive intervention
for a “clear abuse of discretion.” Fox v. Tyson Foods, Inc.,
519 F.3d
1298, 1301 (11th Cir. 2008). A district “court may permit anyone
to intervene who . . . has a claim or defense that shares with the
main action a common question of law or fact.” Fed. R. Civ. P.
24(b). Generally, “[p]ermissive intervention under [Rule] 24(b) is
appropriate where a party’s claim or defense and the main action
have a question of law or fact in common and the intervention will
not unduly prejudice or delay the adjudication of the rights of the
original parties.” Mt. Hawley Ins. Co. v. Sandy Lake Props., Inc.,
425 F.3d 1308, 1312 (11th Cir. 2005). However, “it is wholly discre-
tionary with the court whether to allow intervention under Rule
24(b) and even though there is a common question of law or fact,
or the requirements of Rule 24(b) are otherwise satisfied, the court
may refuse to allow intervention.” Worlds v. Dept. of Health &
Rehab. Servs.,
929 F.2d 591, 595 (11th Cir. 1991) (quotation omit-
ted).
A federal court cannot decide a “moot” controversy, how-
ever. See Fla. Pub. Interest Research Grp. Citizen Lobby, Inc. v.
E.P.A.,
386 F.3d 1070, 1086 (11th Cir. 2004). Thus, a court has an
independent duty to ensure that a case or claim is not moot. See
id. at 1083, 1086. A claim is moot “when the issues presented are
no longer ‘live’ or the parties lack a legally cognizable interest in
the outcome.”
Id. at 1086. This can happen when events after the
filing of a pleading “deprive the court of the ability” to provide
“meaningful relief.”
Id.
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4 Opinion of the Court 20-14152
Here, Sussman’s “motion to join” did not specify any spe-
cific rule of civil procedure. However, we conclude that the mag-
istrate judge correctly concluded that an earlier ruling in Harvard
rendered his present motion moot. In any event, after reviewing
Sussman’s action and Harvard, we cannot say that denying Suss-
man’s motion to join was outside “the district court’s range of
choices.” Swan,
293 F.3d at 1253. Accordingly, we affirm in this
respect.
II.
We review a district court’s dismissal under the PLRA’s
“three strikes” provision de novo. Mitchell v. Nobles,
873 F.3d 869,
873 (11th Cir. 2017). That provision provides as follows:
In no event shall a prisoner bring a civil action or ap-
peal a judgment in a civil action or proceeding under
this section if the prisoner has, on 3 or more prior oc-
casions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United
States that was dismissed on the grounds that it is friv-
olous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under im-
minent danger of serious physical injury.
28 U.S.C. § 1915(g) (emphasis added).
When determining whether a plaintiff has met this burden,
we look to the plaintiff’s complaint, construing it liberally and ac-
cepting the allegations as true, and ask, “whether his complaint, as
a whole, alleges imminent danger of serious physical injury.”
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20-14152 Opinion of the Court 5
Brown v. Johnson,
387 F.3d 1344, 1349-50 (11th Cir. 2004). How-
ever, we do not take “wildly implausible allegations” to be true.
Miller v. Donald,
541 F.3d 1091, 1100 (11th Cir. 2008).
Here, the district court properly concluded that Sussman
was a “three-striker,” because he had more than three civil cases
dismissed as frivolous or for failure to state a claim. Nevertheless,
viewing his pro se complaint as a whole and accepting his plausible
allegations as true, we conclude that he alleged an imminent dan-
ger of serious physical injury under § 1915(g). Specifically, he al-
leged that his sex offender status put him in danger, that officials
knew this, and that they nonetheless encouraged attacks against
him and failed to protect him from attacks by dangerous inmates.
While it is a close call, these claims are arguably not so “wildly im-
plausible” that we should not treat them as true. Miller,
541 F.3d
at 1100.
Therefore, it was error for the district court to dismiss his
complaint at this stage. Because the district court addressed only
the issue of the three strikes bar and its exception, we address only
this issue on appeal. 1
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED FOR FURTHER PROCEEDINGS
1 We deny Sussman’s “Motion for order directing DOC to respond; and notice
of inquiry” as moot.
