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Dornon v. Jurgens

United States District Court, D. Kansas

January 16, 2015

DONALD DORNON, Plaintiff,
v.
CHRIS JURGENS, et al., Defendants.

MEMORANDUM AND ORDER

KAREN M. HUMPHREYS, Magistrate Judge.

This matter comes before the court on the following motions:

1) The City of Scott City's motion to intervene (Doc. 19);
2) Plaintiff's motion for appointment of counsel (Doc. 21); and
3) Plaintiff's motion for service of process by the U.S. Marshal's Service (Doc. 24).

The court's rulings are set forth below.

Background[1]

Plaintiff is a resident of Scott City, Kansas and the thirteen defendants include Scott City police officers, the mayor, city councilmen, and the city attorney. In late 2013, the Scott City Council passed an ordinance which gives the council the power to determine whether real estate within the city limits is considered blighted. The ordinance allows the council to take action to have private property cleaned up and any offending personal property removed, and property owners who do not agree with the council's decision may appeal to the district court.

On November 27, 2013, plaintiff was cited by the Scott City Public Service Officer for violations of the city environmental code-specifically for having fencing supplies, tires, a large number of children's toys, multiple lawn mowers and bicycles, and other items on his real property. The specific facts are unclear, but it appears that on or about May 6, 2014, the city provided to plaintiff a six-page list of items that he must remove from his property in order to abate the nuisance citation. After plaintiff failed to clear the items from his yard, city officers apparently removed the offending items on May 8 and 9, 2014.

Appearing pro se, plaintiff claims that the defendants conspired to pass the ordinance for the purpose of denying his constitutional rights and that the ordinance is unconstitutional on its face. Plaintiff asserts that the city officials, acting in their individual capacities, violated his constitutional rights under 42 U.S.C. ยง 1983.

Scott City's motion to intervene (Doc. 19)

Scott City seeks to intervene as a defendant[2] pursuant to Fed.R.Civ.P. 24(a) and (b). Plaintiff opposes the motion, arguing that he has made no claims of liability against Scott City and that allowing intervention would deprive him of his right to bring this action against the individual defendants.

The Tenth Circuit "generally follows a liberal view in allowing intervention under Fed.R.Civ.P. 24(a)."[3] Rule 24(a)(2) provides that the court must permit intervention as a matter of right if the intervening party (1) files a timely motion, (2) claims an interest relating to the property or transaction that is the subject of the action, (3) is so situated that the action may as a practical matter impair or impede movant's ability to protect its interest, and (4) the existing parties do not adequately represent that interest.

The court finds that the first three requirements of Rule 24(a) are met. Scott City timely filed its motion to intervene and clearly has an interest (the constitutionality of its city ordinance) that may be impaired in this case. However, there remains a question whether the existing defendants-city representatives and employees in their individual capacities-adequately represent the interests of Scott City in upholding its ordinance. "Representation is adequate when the objective of the applicant for intervention is identical to that of one of the parties."[4] But representation is not adequate if the movant can show a "possible divergence of interest" and that potential for divergence "need not be great."[5] The burden is on the applicant in intervention to demonstrate this divergence but ...


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