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Upshaw v. McLaughlin

United States District Court, M.D. Georgia, Macon Division

September 15, 2017

TODD UPSHAW, Plaintiff,
v.
GREGORY MCLAUGHLIN, et al., Defendants.

          REPORT AND RECOMMENDATION

          STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE.

         Presently pending before the Court is Waseem Daker's motion to intervene, filed on September 8, 2017. ECF No. 85. Daker's motion is ripe for review. For the reasons discussed herein, Daker's motion is denied.

         BACKGROUND

         On October 19, 2015, Plaintiff Todd Upshaw filed this § 1983 action. ECF No. 1. His claims arise from his confinement at Macon State Prison. Id. at 2, 5-17. On February 23, 2017, the court granted the Defendants' motion for summary judgment as recommended by the Magistrate Judge. ECF No. Plaintiff, after failing to initially file objections to the Magistrate Judges' Recommendation, was allowed extra time to do so and on April 13, 2017, Plaintiff did file objections to the Recommendation. ECF No. 83. Waseem Daker filed his motion to intervene on September 8, 2017, along with his own objections to the Recommendation made in this case.

         DISCUSSION

         I. Intervention of Right

         Daker asserts that he is entitled of intervention of right. The Court disagrees.

Intervention of right occurs where an individual files a timely motion and 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). Daker does not meet this standard.

         Daker fails to meet the standard notwithstanding any discussion of the timelineness of his motion. Daker seeks relief for different claims, based on wholly different facts and allegedly perpetrated by different actors with different result. Daker's claims arise from his incarceration at Georgia State Prison and he presents different legal issues than Plaintiff. He can, in no way, claim an actual legal interest relating to the property or transaction that is the subject of this action. Daker alleges various constitutional and statutory violations. In fact, Daker has filed his own lawsuits asserting such allegations, and those are the proper vehicle for litigating his claims. Further, even assuming that Daker could demonstrate an actual legal interest, Daker has not demonstrated that the interest here is inadequately represented. Daker has no intervention as a matter of right under the Federal Rules and his motion should be denied.

         II. Permissive Intervention

         For the reasons discussed herein, permissive intervention is inappropriate and the Court should decline to exercise its discretion to grant the same. See Fed. R. Civ. P. 24(b). Daker attempts to use permissive intervention to circumvent the PLRA three strike requirement. Such requirements are part of Congress's legitimate effort to curtail abusive litigation and this Court will not permit Daker to usurp Congress's authority to do so.

         The “three strikes” provision of the Prison Litigation Reform Act (“PLRA”) prohibits a prisoner from bringing a civil action in forma pauperis

if the prisoner has, on 3 or more prior occasions, 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 frivolous, malicious, or fails to state a claim upon which relief may be granted, ...

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