                                                            F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                             MAR 17 1999
                             TENTH CIRCUIT
                                                         PATRICK FISHER
                                                                  Clerk

BOBBY BATTLE, et al.; UNITED
STATES OF AMERICA,

     Plaintiffs,

           v.                                 No. 98-7091
                                         (D.C. No. CV-72-95-B)
LARRY FIELDS, Director; DAN                   (E.D. Okla.)
REYNOLDS, Warden, Oklahoma State
Penitentiary; CALVIN SAMUEL
MUSE, JR., member of the Oklahoma
Board of Corrections; HUGH REED,
member of the Oklahoma Board of
Corrections; WILLIAM EVANS,
member of the Oklahoma Board of
Corrections; PHIL DESSAUER; JOE
R. MANNING, member of the
Oklahoma Board of Corrections;
GREGORY H. HALL, member of the
Oklahoma Board of Corrections;
DANIEL BLINTZ, member of the
Oklahoma Board of Corrections,

     Defendants-Appellees,

__________

TONY LAMAR VANN,

     Movant-Appellant.
                            ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Therefore, the

case is ordered submitted without oral argument.

      Tony Lamar Vann, appearing pro se, appeals the district court’s denial of

his motion to intervene and to amend the complaint in        Battle v. Anderson , CIV-

72-095-B (E.D. Okla. 1972), a twenty-six-year-old class action involving

conditions of confinement in Oklahoma prisons. We affirm.

      Vann, a prisoner in the custody of the Oklahoma Department of

Corrections, apparently had been incarcerated at a private prison in Texas. On

June 8, 1998, Vann filed a motion to intervene in       Battle , asserting his “over-

crowded condition is similar, and or synonymous, with the above styled recent

ruling.” Record I, Doc. 180. On June 12, he filed a separate motion to file an

amended complaint in    Battle , seeking to add himself as a party and “amend[] the



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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whole cause” based on common questions of law or fact.           Id. , Doc. 181. The

district court denied the motions. The court ruled Vann’s claims were associated

with incarceration at a private prison in Texas and were unrelated to the specific

class claims in Battle . The court noted it had dissolved many of the injunctions in

Battle and that the issues asserted by Vann were not encompassed in the

remaining issues. The court further found amendment of the twenty-six-year-old

complaint would prejudice the parties.

       We review a ruling on a motion to intervene as of right de novo and review

a ruling on a motion for permissive intervention for abuse of discretion.         Alameda

Water & Sanitation Dist. v. Browner      , 9 F.3d 88, 90 (10th Cir. 1993). We review

a ruling as to timeliness of a motion for intervention for abuse of discretion.        Id.

Federal Rule of Civil Procedure 24(a) authorizes intervention as of right

       (1) when a statute of the United States confers an unconditional right
       to intervene; or (2) when the applicant claims an interest relating to
       the property or transaction which is the subject of the action and the
       applicant is so situated that the disposition of the action may as a
       practical matter impair or impede the applicant’s ability to protect
       that interest, unless the applicant’s interest is adequately represented
       by existing parties.

Rule 24(b) provides permissive intervention “(1) when a statute of the United

States confers a conditional right to intervene; or (2) when an applicant’s claim or

defense and the main action have a question of law or fact in common.”

       Vann has not identified any statute giving him an unconditional or a


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conditional right to intervene. His vaguely presented basis for intervention is that

his conditions of confinement are constitutionally insufficient. Vann reasons he

is entitled to intervene because   Battle is, in part, a conditions of confinement

case. His claim does not arise from the same course of conduct or factual

occurrences that gave rise to any of the claims in      Battle and his claim would be

unaffected by any judgment entered in      Battle . Intervention is not appropriate.

See Kiamichi R.R. Co. v. National Mediation Bd.         , 986 F.2d 1341, 1345 (10th Cir.

1993); Jicarilla Apache Tribe v. Hodel    , 821 F.2d 537, 539 (10th Cir. 1987).

       We review the district court’s denial of a motion to amend for abuse of

discretion. See Las Vegas Ice and Cold Storage Co. v. Far West Bank          , 893 F.2d

1182, 1185 (10th Cir. 1990). Federal Rule of Civil Procedure 15(a), as relevant

here, provides that “a party” may amend the “party’s pleading only by leave of

court or by written consent of the adverse party.” The court’s refusal of leave to

amend is justified for, among other things, undue prejudice to the opposing party,

untimeliness, or futility of amendment.     Castleglen, Inc. v. Resolution Trust

Corp. , 984 F.2d 1571, 1585 (10th Cir. 1993);        Woolsey v. Marion Lab., Inc. , 934

F.2d 1452, 1462 (10th Cir. 1991). Vann was not a party or a class member in

Battle and was not entitled to seek amendment of the complaint. The court did

not abuse its discretion.




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AFFIRMED. The mandate shall issue forthwith.

                                    Entered for the Court

                                    Mary Beck Briscoe
                                    Circuit Judge




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