The opinion of the court was delivered by: Judge Gregory L. Frost
Magistrate Judge Mark R. Abel
Richard Cooey, a state prisoner sentenced to death by the State of Ohio, is the original plaintiff in a civil rights action pending before this Court that challenges multiple facets of the lethal injection protocol used by the State of Ohio. This matter is before the Court on John Spirko's emergency motion to intervene (Doc. # 119) and motion for a preliminary injunction (Doc. # 120). For the reasons that follow, the Court GRANTS the former and DENIES the latter.
I. Emergency Motion to Intervene
As it did with respect to John Hicks, Jeffrey Hill, Johnnie Baston, Arthur Tyler, Jeffrey Lundgren, Jerome Henderson, and Kenneth Biros, the Court concludes that permissive intervention is warranted pursuant to Fed. R. Civ. P. 24(b)(2). That rule provides in relevant part:
Upon timely application anyone may be permitted to intervene in an action: ... (2) when an applicant's claim or defense and the main action have a question of law or fact in common. ... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
Fed. R. Civ. P. 24(b)(2).
The Court must first determine whether the application to intervene is timely. In addressing timeliness, the Court must consider:
(1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor's failure, after he or she knew or reasonably should have known of his interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.
United States v. Tennessee, 260 F.3d 587, 592 (6th Cir. 2001) (quoting Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989)).
Pursuant to the reasoning set forth in this Court's March 28, 2005 Opinion and Order (Doc. # 14), the statute of limitations on Spirko's § 1983 claim did not begin to run until his execution became imminent (i.e., when the United States Supreme Court declined to review his habeas corpus case or when the time for seeking United States Supreme Court review expired) and when he knew or had reason to know of the facts giving rise to his claim. The United States District Court for the Northern District of Ohio denied Spirko's habeas corpus petition on July 11, 2000. (Doc. # 119, at 2.) The Court of Appeals for the Sixth Circuit affirmed the denial of habeas corpus relief on May 17, 2004. Spirko v. Mitchell, 368 F.3d 603, 614 (6th Cir. 2004). The United States Supreme Court denied certiorari on March 28, 2005. Additionally, Spirko filed in the district court on April 27, 2005 a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b), litigation of which concluded on December 22, 2005, when the Sixth Circuit affirmed the district court's decision denying relief. (Doc. # 130, at 3.) Further, the clemency application that Spirko began litigating simultaneously with his Rule 60(b) litigation is still unresolved and has five times resulted in reprieves, all of which the Attorney General requested to allow for the completion of DNA testing. (Id. at 3-4) Most recently, Governor Taft granted Spirko a reprieve on October 20, 2006, delaying Spirko's execution date until April 17, 2007. (Id. at 4.) Spirko filed the instant emergency motion to intervene on November 20, 2006.
In determining whether Spirko's application is timely, the first factor the Court must consider is the point to which the suit has progressed. United States v. Tennessee, 260 F.3d at 592. It is beyond dispute that this litigation remains in its early stages. On April 13, 2005, this Court issued an order granting Defendants' request for an interlocutory appeal. (Doc. # 21.) This litigation has not even reached the discovery stage. Thus, by the time Spirko filed the instant motion to intervene, this Court had long before stayed the instant litigation, which has not progressed since.
The second factor this Court must consider is the purpose for which intervention is sought. In this regard, Defendants argue that "this Court should recognize that Spirko is attempting to join this lawsuit for one reason: he knew that it was his best chance at obtaining delay." (Doc. # 128, at 4.) The Court respectfully disagrees and finds that this factor also militates in favor of finding that Spirko's motion to intervene is timely. Defendants' argument, while perhaps plausible, is nonetheless purely speculative and ignores the significant interest that Spirko has in the adjudication of this lawsuit, as well as the shared questions of law and fact that are obvious from the record and require no speculation.
The third factor for this Court to weigh in determining whether the instant application is timely is the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case. Defendants argue that "it is beyond peradventure that Spirko reasonably should have known about the Cooey lawsuit for at least the last two years." (Doc. # 128, at 4.) Although the Court agrees that Spirko reasonably should have known about the Cooey lawsuit for at least the last two years, the Court does not see how this factor tilts against finding that Spirko's motion is timely. Two years ago, when Cooey first filed this lawsuit, Spirko was still actively litigating his habeas corpus action. In fact, litigation on Spirko's Rule 60(b) motion for relief from judgment only concluded on December 22, 2005, and proceedings on his clemency application--proceedings that have five times resulted in reprieves to allow for DNA testing--has yet to conclude. Thus, to extent that Spirko had reason to be aware of Cooey's lawsuit for the last two years, he had no reason to recognize his own significant interest in the outcome of Cooey's lawsuit until his pursuit of habeas corpus ...