Opinion
20-CV-1332-RJD-SJB
2021-03-11
Vernon JONES, Vladimir Krull, Thomas Mitchell, Compton Mohabir, and Corydon Umber, Plaintiffs, v. Tina M. STANFORD, in her official capacity as Chairperson of the New York Board of Parole, and Anthony Annucci, in his official capacity as Acting Commissioner of the Department of Corrections and Community Supervision, Defendants.
Daniel Ross Lambright, Terry Ding, Molly Knopp Biklen, New York Civil Liberties Union, New York, NY, Alexis Brie Karteron, Rutgers Constitutional Rights Clinic, Newark, NJ, Michael Cassidy, Prisoners’ Legal Services of New York, Plattsburgh, NY, for Plaintiffs. Bruce Jay Turkle, Office of the NYS Attorney General, Daniel Schulze, N.Y. State Department of Law, New York, NY, for Defendants.
Daniel Ross Lambright, Terry Ding, Molly Knopp Biklen, New York Civil Liberties Union, New York, NY, Alexis Brie Karteron, Rutgers Constitutional Rights Clinic, Newark, NJ, Michael Cassidy, Prisoners’ Legal Services of New York, Plattsburgh, NY, for Plaintiffs.
Bruce Jay Turkle, Office of the NYS Attorney General, Daniel Schulze, N.Y. State Department of Law, New York, NY, for Defendants.
MEMORANDUM & ORDER
BULSARA, United States Magistrate Judge: Plaintiffs Vernon Jones, Vladimir Krull, Thomas Mitchell, Compton Mohabir, and Corydon Umber ("Plaintiffs") commenced this action on March 12, 2020 against Tina M. Stanford, in her official capacity as Chairperson of the New York State Board of Parole, and Anthony Annucci, in his official capacity as Acting Commissioner of the Department of Corrections and Community Supervision, ("Defendants"), challenging the constitutionality of New York State's Electronic Security and Targeting of Online Predators Act ("e-STOP"), N.Y. Exec. Law § 259-c, and New York State Department of Corrections and Community Supervision ("DOCCS") Directives 9201 and 9202. On November 19, 2020, Daniel Miller ("Miller") moved to intervene pursuant to Rule 24(b)(1)(B). (Notice of Mot. and Mot. to Intervene dated Nov. 7, 2020 ("Mot."), Dkt. No. 45). Plaintiffs and Defendants oppose. The Honorable Raymond J. Dearie referred the Motion to the undersigned for decision. For the reasons stated below, Miller's motion to intervene is denied.
(Compl. dated Mar. 12, 2020 ("Compl."), Dkt. No. 1; Am. Compl. dated June 1, 2020 ("Am. Compl."), Dkt. No. 17).
(Pls.’ Mem. of Law in Opp'n to Mot. dated Dec. 9, 2020 ("Pls.’ Opp'n"), Dkt. No. 47; Defs.’ Mem. of Law in Opp'n to Mot. dated Dec. 9, 2020 ("Defs.’ Opp'n"), Dkt. No. 46).
(Order dated Nov. 24, 2020).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In New York, individuals on parole and under post-release supervision are under what is known as "community supervision." (Am. Compl. ¶ 23). Such individuals are subject to certain standard conditions of release, but the New York State Board of Parole ("Parole Board") and DOCCS can impose additional restrictions, including on convicted sex offenders. (Id. ¶ 24). Pursuant to New York's Sex Offender Registration Act, individuals convicted of certain sexually-based offenses must register as sex offenders ("Registrants"), and are assigned a certain risk level—Level One through Level Three—indicative of that individual's risk of sexual recidivism. (Id. ¶¶ 25–26). Different release conditions correspond to each risk level. (Id. ¶ 27).
Level One is the lowest risk level, Level Two is moderate, and Level Three indicates the highest risk of recidivism. (Id. ¶ 26).
Level Three Registrants, Registrants who committed an offense involving a minor, and Registrants who used the internet to commit a sexually-based offense are prohibited from using the internet to, among other things, access a commercial social networking website. N.Y. Exec. Law § 259-c(15). This social media prohibition, enacted by the New York Legislature in 2008 as part of e-STOP, (Am. Compl. ¶ 41), was implemented by DOCCS through Directive 9201, (id. ¶¶ 46–47). Plaintiffs allege that DOCCS applies Directive 9201 to all Registrants under community supervision, not just those delineated in e-STOP. (Id. ¶ 48).
A "commercial social networking website" is a website that allows minors to create accounts or profiles, communicate with other users, and communicate with users over the age of eighteen. N.Y. Exec. Law § 259-c(15).
Plaintiffs commenced this action on March 12, 2020, claiming that e-STOP and Directives 9201 and 9202—which prohibits all Registrants from owning a computer or using the internet without prior approval, (Am. Compl. ¶ 31)—are each unconstitutional, (id. ¶¶ 82–87). Plaintiffs sought a preliminary injunction to enjoin Defendants from enforcing e-STOP and Directive 9201 to the extent they imposed a social-media ban on Registrants on August 25, 2020, which the Court granted. See Jones v. Stanford , 489 F.Supp.3d 140, 143–44 (E.D.N.Y. 2020). Subsequently, the parties began negotiating a potential settlement. (Mot. for Extension of Time to Complete Disc. dated Oct. 30, 2020, Dkt. No. 44, at 1).
On November 19, 2020, Miller, proceeding pro se , filed a motion to intervene pursuant to Rule 24(b)(1)(B). (Mot.). Miller is currently incarcerated after being convicted for sexual offenses involving a minor. (Intervenor's Compl. dated Nov. 7, 2020 ("Miller's Compl."), Dkt. No. 45-1 ¶¶ 3, 6). Miller's offenses were not alleged to have involved the internet or computers. (Id. ¶ 7). Miller states that e-STOP and Directives 9201 and 9202 will apply to him upon his release. (Id. ¶¶ 2, 10–12).
Miller contends that the Plaintiffs’ pleadings do not include certain facts and claims, namely that: (1) internet access has become even more important due to the COVID-19 pandemic; (2) e-STOP and Directives 9102 and 9202 violate Registrants’ Fourteenth Amendment due process rights by denying them the ability to choose their employment; (3) use of computers and the internet are necessary to Miller's only means of financial support; (4) e-STOP and Directives 9102 and 9202 "do not meet the least restrictive means test, are overly broad, unconstitutionally vague, arbitrary, irrational, capricious, excessive, and are not narrowly tailored as required by the First and Due Process Component of the Fourteenth Amendments"; and (5) e-STOP and Directives 9102 and 9202 prevent Miller's access to the courts, as he is not able to participate in video court proceedings, conduct legal research, or use e-filing systems—for example, PACER and ECF. (Id. at 2–4). Miller seeks to add numerous causes of action to the Amended Complaint, including claims alleging violations of Miller's First Amendment rights of free exercise and petition, rights under the Sixth and Eighth Amendment, the Fourteenth Amendment Due Process and Equal Protection Clauses, various other constitutional provisions, and a panoply of federal statutes. (Id. ¶¶ 27–29).
DISCUSSION
Rule 24 allows for two types of intervention: "Subdivision (a) speaks of ‘Intervention of Right’ and says that the court ‘must permit anyone to intervene’ if the applicant satisfies the tests of that portion of the rule. Subdivision (b), however, is captioned ‘Permissive Intervention’ and states conditions under which the court ‘may permit anyone to intervene.’ " 7C Charles Alan Wright & Arthur R. Miller et al., Federal Practice & Procedure § 1902 (3d ed. 2020) (quoting Fed. R. Civ. P. 24 ). If a proposed intervenor does not meet the requirements of intervention of right, she "may be permitted to intervene under subdivision (b)([1]) if the applicant has a claim or defense that shares a common question of law or fact with the main action." Id. Rule 24(b)(1)(B), which allows for permissive intervention not derived from a statute or asserted by a governmental entity, "provides that on timely motion the court may allow an absentee to intervene when an applicant ‘has a claim or defense that shares with the main action a common question of law or fact.’ " Id. § 1911 (quoting Fed. R. Civ. P. 24(b)(1)(B) ). The Court has discretion "whether to allow an absentee so situated to intervene[,] and the rule expressly provides that in exercising its discretion the court is to consider ‘whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.’ " Id. (quoting Fed. R. Civ. P. 24(b)(3) ); see also In re Holocaust Victim Assets Litig. , 225 F.3d 191, 202 (2d Cir. 2000) ("A district court may grant a motion for permissive intervention if the application is timely and if the ‘applicant's claim or defense and the main action have a question of law or fact in common.’ The court must consider whether granting permissive intervention ‘will unduly delay or prejudice the adjudication of the rights’ of the existing parties." (quoting Fed. R. Civ. P. 24(b)(2) )); United States v. Pitney Bowes, Inc. , 25 F.3d 66, 72–73 (2d Cir. 1994).
This Court has broad discretion in deciding whether to grant permissive intervention. "[I]t is wholly discretionary 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." 7C Wright & Miller, supra , § 1913; see also H.L. Hayden Co. of N.Y., Inc. v. Siemens Med. Sys., Inc. , 797 F.2d 85, 89 (2d Cir. 1986) (holding that district courts enjoy "very broad" discretion in determining whether to grant a motion for permissive intervention); ACORN v. County of Nassau , 270 F.R.D. 123, 125 (E.D.N.Y. 2010) (same). "In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights." Fed. R. Civ. P. 24(b)(3) ; see 7C Wright & Miller, supra , § 1913 (stating undue delay and prejudice are "[t]he principal consideration[s]" in exercising Rule 24 discretion).
Miller seeks permissive intervention under Rule 24(b)(1)(B). (Mot. at 1). His proposed Complaint shares common questions of law and fact with the Amended Complaint, and indeed he acknowledges that "[t]here is NO expansion of the causes of action raised in the original complaint, because the original complaint fully raises the claims of internet, computer and smart phone access to convicted sex offenders on Post-Release Supervision or Parole." (Intervenor's Mem. of Law in Reply to Def.’s Opp'n to Mot. dated Jan. 5, 2021 ("Reply"), Dkt. No. 50 at 3).
Plaintiffs agree. (Pls.’ Opp'n at 4 ("Mr. Miller shares the same objective as the plaintiffs: securing a declaration that the social media and internet bans of e-STOP and Directives 9201 and 9202 are unconstitutional, and an injunction ending their enforcement.")). At bottom, any relief granted in the ongoing case will also apply to Miller, because such relief would be injunctive and would encapsulate individuals who have committed sexually-based offenses not involving the internet. (See Pls.’ Opp'n at 6–7). As here, "[i]f common issues of law or fact exist, the decision whether to allow intervention is left to the district court's discretion." Bldg. & Realty Inst. of Westchester & Putnam Cntys., Inc. v. State of New York , No. 19-CV-11285, 2020 WL 5658703, at *9 (S.D.N.Y. Sept. 23, 2020) (quoting Gulf Underwriters Ins. Co. v. Hurd Ins. Agency , No. 03-CV-1277, 2004 WL 2935794, at *2 (D. Conn. Dec. 16, 2004) ). "The principal guide in deciding whether to grant permissive intervention is ‘whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.’ " Pitney Bowes, Inc. , 25 F.3d at 73 (quoting Fed. R. Civ. P. 24(b)(2) ); Penn-Star Ins. Co. v. Maint. Asset Mgmt. Inc. , No. 17-CV-5047, 2019 WL 4667714, at *3 (E.D.N.Y. Sept. 25, 2019) (same), aff'd sub nom. Penn-Star Ins. Co. v. McElhatton , 818 F. App'x 67 (2d Cir. 2020).
Defendants, alternatively, state there are no common questions of law or fact. (Defs.’ Opp'n at 2).
Miller filed his motion in November 2020, more than eight months after the case commenced. By that time, Defendants had already developed a plan to implement the preliminary injunction relating to e-STOP and Directive 9201, (see Defs.’ Letter dated Oct. 16, 2020, Dkt. No. 42), to which the Plaintiffs did not object, (Pls.’ Letter dated Oct. 26, 2020, Dkt. No. 43), and Plaintiffs and Defendants had begun settlement negotiations, (Mot. for Extension of Time to Complete Disc. dated Oct. 30, 2020, Dkt. No. 44). Plaintiffs and Defendants are actively working toward a resolution of this case, and both express concern that permitting Miller to intercede would "derail" negotiations. (Defs.’ Opp'n at 2; accord Pls.’ Opp'n at 7–8).
Numerous courts in this Circuit have denied motions for permissive intervention in similar circumstances, namely when the parties had already commenced settlement negotiations. See, e.g. , In re Holocaust Victim Assets Litig. , 225 F.3d at 199 ("In short, intervention at this late stage would prejudice the existing parties by destroying their Settlement and sending them back to the drawing board."); Brack v. MTA N.Y.C. Transit , No. 18-CV-846, 2019 WL 1547258, at *5 (E.D.N.Y. Apr. 9, 2019) (finding that when motion to intervene proposed two requests that would cause "significant delay," and settlement negotiations were ongoing, granting intervention "would unnecessarily delay and prejudice" the parties), appeal withdrawn sub nom. Sterbenz v. Brack , No. 19-CV-1304, 2019 WL 3526374 (2d Cir. July 16, 2019) ; Padro v. Astrue , No. 11-CV-1788, 2013 WL 1192824, at *5 (E.D.N.Y. Feb. 7, 2013) (denying leave to intervene where intervention "would derail the settlement process"), report and recommendation adopted , 2013 WL 1192819 (Mar. 22, 2013) ; SEC v. Illarramendi , No. 11-CV-78, 2012 WL 5832330, at *5 (D. Conn. Nov. 16, 2012) ("Allowing Movants to intervene at this juncture, on the eve of a settlement ..., and particularly where Movants are fully able to object to the Stipulation of Settlement through means other than intervention, would only serve to delay the administration of this enforcement action. Accordingly, ... Movants’ requests for permissive intervention are denied."). Similarly, here, Plaintiffs and Defendants would be prejudiced if Miller were allowed to intervene. They have been involved in settlement negotiations for several months, and Miller's proposed Complaint would require the Court to pause any settlement to resolve the additional causes of action raised by Miller, and potentially require the parties to bring Miller into the settlement process. Such intervention would almost certainly delay any resolution.
Further, Miller will not be prejudiced if his intervention motion is denied. As an initial matter, there is a serious question as to whether Miller has standing to obtain damages—he remains incarcerated and is not yet subject to any of the post-release restrictions that are the subject of the current litigation. If he is seeking injunctive relief, even assuming he has standing, he would be entitled to the injunctive relief already voluntarily put in place by Defendants and any future relief achieved by the parties through settlement or litigation. Should Miller believe that the ultimate resolution of the case does not go far enough, he may file his own separate lawsuit in federal or state court. Therefore, there is no prejudice he would suffer from denying intervention.
Miller indicates that he may be released from prison in the near future, (see Letter Mot. for a Pre-Mot. Conference dated Feb. 7, 2021, Dkt. No. 51), but the Court has not been informed that such release has, in fact, occurred.
Indeed, Miller already has 11 ongoing actions challenging the constitutionality of e-STOP and Directives 9201 and 9202. (Miller's Compl. ¶ 22).
CONCLUSION
For the foregoing reasons, the Court denies Miller's motion to intervene.
SO ORDERED.