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Marshall v. Pennsylvania Department of Corrections

United States District Court, Third Circuit

May 10, 2013

KERRY-X [MARSHALL], Plaintiff,
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS, et al., Defendants.

MEMORANDUM AND ORDER[1]

MALACHY E. MANNION, District Judge.

On January 24, 2012, Plaintiff, Kerry-X Marshall, filed the above captioned, pro se action, on behalf of himself and four other individuals, [2] in the United States District Court for the Western District of Pennsylvania, at Civil No. 2:12-cv-00082. (See Doc. No. 7).

On February 1, 2012, Magistrate Judge Kelly issued a Report and Recommendation, recommending, inter alia, that the four parties who did not sign the Complaint be dismissed, and that the remaining claims be transferred to the United States District Court for the Middle District of Pennsylvania. (Doc. No. 2).

On February 17, 2012, Judge Bissoon adopted the Report and Recommendations in full, dismissed the four non-signatory Plaintiffs, and transferred the action to this Court. (Doc. No. 6).

On May 15, 2012, the Court, inter alia, denied Plaintiff's motion for preliminary injunction and directed the United States Marshal to serve the Complaint upon Defendants. (Doc. No. 21.) The United States Marshal Service served the Complaint on May 17, 2012. (See Doc. No. 28).

Presently before the Court are motions for permissive joinder, pursuant to Fed.R.Civ.P. 20, filed by James "Shakoor" Townsend, an inmate at the Mahanoy State Correctional Institution, Frackville, Pennsylvania, (See Doc. No. 17), and Shawn "Mustafa" Saunders, an inmate at the State Correctional Institution, Graterford, Pennsylvania. (See Doc. No. 23). For the reasons set forth below, these motions will be denied.

Discussion

In Hagan v. Rogers , 570 F.3d 146 (3d Cir.2009), the United States Court of Appeals for the Third Circuit addressed certain considerations applicable to civil cases in which multiple prisoner-plaintiffs seek to join in one action pursuant to Rule 20.[3]

Rule 20 of the Federal Rules of Civil Procedure provides the following regarding permissive joinder of parties:

(1) Plaintiffs. Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.
(2) Defendants. Persons... may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.

Fed.R.Civ.P. 20(a).

The requirements prescribed by Rule 20(a) are to be liberally construed in the interest of convenience and judicial economy. See Swan v. Ray , 293 F.3d 1252, 1253 (11th Cir. 2002). However, the policy of liberal application of Rule 20 is not a license to join unrelated claims and defendants in one lawsuit. See, e.g., Pruden v. SCI Camp Hill , 252 Fed.App'x 436 (3d Cir.2007); George v. Smith , 507 F.3d 605 (7th Cir.2007); Coughlin v. Rogers , 130 F.3d 1348 (9th Cir.1997).

Moreover, Rule 21 of the Federal Rules of Civil Procedure provides that, "[o]n motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party." Similarly, a district court has broad discretion in deciding whether to sever a party or claim pursuant to Rule 21. Although Rule 21 is most commonly invoked to sever parties improperly joined under Rule 20, "the Rule may also be invoked to prevent prejudice or promote judicial efficiency." Lopez v. City of Irvington , 2008 WL 565776, *2 (D.N.J.2008); see also Sporia v. Pennsylvania Greyhound Lines, Inc. , 143 F.2d 105 (3d Cir.1944) (not limiting Rule 21 severance to cases of misjoinder); Wyndham Assoc. v. Bintliff , 398 F.2d 614 (2d Cir.) (same, citing Sporia), cert. denied, 393 U.S. 977 , 89 S.Ct. 444, 21 L.Ed.2d 438 (1968); Rohr v. Metropolitan Ins. & Cas. Co. , 2007 WL 163037 (E.D.La. Jan.17, 2007) (court may also consider whether jury confusion would result from the volume of evidence if the plaintiffs were joined); 4 James Wm. Moore et al., Moore's Federal Practice § 21.02(1) (3d ed.2007) (courts may issue severance orders under Rule 21, even in the absence of misjoinder and non-joinder of parties, "to construct a case for the efficient administration of justice").

Specific factors to be considered in determining whether severance is warranted include: "(1) whether the issues sought to be tried separately are significantly different from one another, (2) whether the separable issues require the testimony of different witnesses and different documentary proof, (3) whether the party opposing the severance will be prejudiced if it is granted, and (4) whether the party requesting severance will be prejudiced if it is not granted." German v. Federal Home Loan Mortgage Corp. , 896 F.Supp. 1385, 1400 (S.D.N.Y. 1995).

In addition, a district court has the inherent power "to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." United States v. Colomb , 419 F.3d 292, 299 (5th Cir. 2005) (quoting Landis v. N. Am. Co. , 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936)). "A court's inherent power to manage its caseload, control its docket, and regulate the conduct of attorneys before it, provides authority to fashion tools that aid the court in getting on with the business of deciding cases." Eash v. Riggins Trucking, Inc. , 757 F.2d 557, 567 (3d Cir.1985).

While the instant complaint seeks the shared remedy for the alleged denial of the First Amendment right to one's freedom to exercise religion, the complaint fails to set forth facts which are common to all Plaintiffs. (Doc. No. 7, complaint). While, "[u]nder the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties, " United Mine Workers of Am. v. Gibbs , 383 U.S. 715, 724 (1966) (footnote omitted), "[i]n making a joinder decision, the district court is guided by the underlying purpose of joinder, which is to promote trial convenience and expedite the resolution of disputes, thereby eliminating unnecessary lawsuits.' " Swan , 293 F.3d at 1253 (quoting Alexander v. Fulton County, Georgia , 207 F.3d 1303, 1323 (11th Cir. 2000)). "[T]he court has discretion to deny joinder if it determines that the addition of the party under Rule 20 will not foster the objectives of the rule, but will result in prejudice, expense or delay." Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1652 (3d ed.2009) (citations omitted); see also Chavez v. Illinois State Police , 251 F.3d 612, 632 (7th Cir. 2001) (a district court's discretion with respect to joinder "allows a trial court to consider, in addition to the requirements of Rule 20, 'other relevant factors in a case in order to determine whether the permissive joinder of a party will comport with the principles of fundamental fairness" (citations omitted)).

In this matter, in addition to an absence of shared facts or occurrences, is the absence of the proposed Plaintiffs' signatures on the complaint. The complaint is signed only by Marshall, and the attached supporting documentation refers only to Marshall. Id . Thus, the fact that the Complaint is signed only by Marshall, and is virtually silent as to any shared claims, suggest that a joinder of Plaintiff's claims with whatever challenges other Plaintiffs might wish to raise would not foster the objectives of the Rule; rather, it is likely to result in undue prejudice, unwarranted expense and/or unnecessary delay. Simply put, the claims set forth in the Complaint do not appear appropriate for joinder, cf. Pope v. Miller, Civil No. 07-0284, 2007 WL 2427978 (W.D. Okla. Aug. 21, 2007) (not appropriate to join access-to-courts claims and Eighth Amendment medical-care and conditions-of-confinement claims): proceeding with multiple, separate litigation for each Plaintiff under the same cause number would be distracting at best-and costly, confusing, and grossly inefficient at worst. See Johnson-Bey v. Indiana Department of Corrections, Civil No. 09-0249, 2009 WL 1691150 (N.D. Ind. June 16, 2009); Steward v. Mississippi, Civil No. 07-0184, 2007 WL 4375210 (S.D.Miss. Dec.12, 2007). Nor do the prospective Plaintiffs' motions support joinder.

Initially, the Court notes that inmate Saunders filed his motion for permissive joinder without a brief in support, as required by M.D. Pa. Local Rule 7.5, and his motion provides no information as to what facts or claims he shares with Plaintiff Marshall. Likewise, although inmate Townsend submitted a brief in support of his motion, he, too, fails to provide facts common with Plaintiff Marshall. In fact, there is no indication that either prospective Plaintiff was ever incarcerated in the same facility with Plaintiff Marshall, at the same time, experiencing the same alleged deprivations.

Moreover, Defendants submit the declaration of Keri Moore, Grievance Review Officer for the Secretary's Office of Inmate Grievances and Appeals, which reveals that neither Saunders, nor Townsend, ever appealed a grievance relating to religion or religious accommodations to the Secretary's Office for final review. (See Doc. Nos. 42, 43, Ex. A, Declaration of Keri Moore). As such, these prospective Plaintiffs would be barred from litigating any of the claims raised in the complaint.[4] Consequently, the Court declines to permit joinder of inmates Saunders and Townsend in the instant action. Inmates Saunders and Townsend are free, however, to pay the appropriate filing fee and file individual complaints.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The motions for joinder (Doc. Nos. 17, and 23) filed by inmates James "Shakoor" Townsend and Shawn "Mustafa" Saunders are DENIED.
2. Plaintiff's motions for leave to file a sur reply in response to Defendants' brief in opposition to the motions for joinder, (Doc. Nos. 66, and 68) are DISMISSED as moot.

Keith Michael Couture, Peter James Diiorio, Samuel Beardsley, Jr., Keith Couture Law Firm, Mandeville, LA, for Diane and Charlie ROHR, et al.

Judy Y. Barrasso, Shera J. Finn, Barrasso Usdin, Kupperman Freeman & Sarver, LLC, New Orleans, LA, for Metropolitan Insurance & Casualty Company.

ORDER AND REASONS

MARTIN L.C. FELDMAN, United States District Judge.

*1 Before the Court is the defendant's motion to sever and proceed separately. For the reasons that follow, the motion is GRANTED.

Background

Each plaintiff owns real property in St. Bernard Parish, Louisiana and holds an insurance policy issued by Metropolitan Property & Casualty Insurance Company. The plaintiffs each allege damage to their property caused by Hurricane Katrina's landfall on August 29, 2005. They filed proofs of loss with Metropolitan, but were unable to resolve their claims. The plaintiffs did not have properties of equal value and of equal condition before Hurricane Katrina, do not have identical insurance policies, did not suffer identical property damage, and did not share the same adjustor. In addition, the plaintiffs' properties are in different parts of St. Bernard Parish.

On August 29, 2006, the plaintiffs filed a complaint in Louisiana state court alleging that Metropolitan is liable for the plaintiffs' property damage, failed to timely initiate loss adjustments for their claims, and has acted in bad faith in denying their claims. Metropolitan removed the lawsuit on November 20, 2006, invoking this Court's diversity jurisdiction.

Metropolitan now seeks severance under Rule 21 of the Federal Rules of Civil Procedure.

I.

A. Rule 20(a)

Rule 20(a) of the Federal Rules of Civil Procedure sets forth the requirements for permissive joinder of parties: "All persons may join in one action as plaintiffs [1] if they assert any right to relief... in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and [2] if any question of law or fact common to all these persons will arise in the action." "Both of these requirements must be satisfied in order to sustain party joinder under Rule 20(a).'" Johnson v. State Farm Fire & Cas., Co., No. 06-6248, 2006 WL 3714228, at *2 (E.D.La. Nov. 28, 2006) (Duval, J.) (quoting Wright, Miller & Kane, Federal Practice & Procedure, 1653 (1986)). District courts should generally employ a liberal approach to permissive joinder of claims to ensure fairness and promote judicial economy. See United Mine Workers v. Gibbs, 383 U.S. 715, 724 (1966).

The transaction and common question requirements "are not rigid tests." Wright, et al., supra, at § 1653. To determine "whether a particular factual situation constitutes a single transaction or occurrence for purposes of Rule 20, a case by case approach is generally pursued.'" Demboski v. CSX Transp., Inc., 157 F.R.D. 28, 29 (S.D.Miss.1994) (quoting Mosley v. Gen. Motors Corp., 497 F.2d 1130, 1333 (8th Cir.1974)).

B. Rule 21

Federal Rule of Civil Procedure 21 provides that "[a]ny claim against a party may be severed and proceeded with separately." (emphasis added). This Court "has broad discretion to sever issues to be tried before it." Burnet v. United Gas Pipeline Co., 15 F.3d 500, 505 (5th Cir.1994); see also Anderson v. Red River Waterway Comm'n, 231 F.3d 211, 214 (5th Cir.2000) (same). A Rule 21 severance creates two (or more) distinct actions or suits where there was previously only one. United States v. O'Neil, 709 F.2d 361, 368 (5th Cir.1983).

*2 A district court is not limited under Rule 21 to remedying misjoinder; its discretion "is not so limited." Id. at 369. In addition to remedying misjoinder, the Court also enjoys discretion to sever an action that might cause delay or prejudice to a party. Applewhite v. Reichhold Chems., 67 F.3d 571, 574 (5th Cir.1995).

To determine whether claims should be severed, a court may consider the following factors: (1) whether the claims arose out of the same transaction or occurrence, (2) whether the claims present common questions of law or fact, (3) whether settlement or judicial economy would be promoted, (4) whether prejudice would be averted by severance, and (5) whether different witnesses and documentary proof are required for separate claims. See Vaz v. Allstate Prop. & Cas. Co., No. 1:06CV481-LTS-RHW, 2006 WL 2583733, at *1 (S.D.Miss. Sept. 6, 2006) (citing Morris v. Northrop Grumman Corp., 37 F.Supp.2d 556, 580 (S.D.N.Y.1999)). A court may also consider whether jury confusion would result from the volume of evidence if the plaintiffs were joined. See Pittman v. Purdue Pharma Co. , No. 3: 03CV152 (BN), 2004 U.S. Dist. LEXIS 9840, at *15 (S.D.Miss. Mar. 12, 2004).

II.

A.

Metropolitan claims that the plaintiffs fail to satisfy the two permissive joinder requirements of Rule 20(a). First, Metropolitan implies that there are no questions of fact common to all the plaintiffs because each plaintiff owns real property in a different part of St. Bernard Parish, and these properties varied in condition before Hurricane Katrina and sustained different amounts and types of damage after the hurricane. In addition, the insurance policies are not identical, nor did the plaintiffs share the same adjustor. Second, Metropolitan claims that because each of the insurance policies was executed separately and because each plaintiffs property suffered unique damage, there is no common transaction or occurrence. The plaintiffs, on the other hand, assert that the effects of Hurricane Katrina form the basis of a common occurrence.

The second prong of Rule 20(a) is disjunctive; the plaintiffs' claims need only have any question of law or fact in common. But even assuming that there is a common question of law among the plaintiffs' claims FN1 that would satisfy the second requirement of Rule 20(a), the plaintiffs have failed to satisfy the initial requirement of a common transaction or occurrence. Metropolitan's position has much support in recent court decisions from the Southern District of Mississippi, which, like this Court, is in the process of adjudicating Hurricane Katrina-related claims. In Comer v. Nationwide Mutual Insurance Co., for example, the plaintiffs sought leave to file a second amended complaint, requesting the court certify defendant classes under Rule 23 of the Federal Rules of Civil Procedure. No. 1:05CV436-LTD-RHW, 2006 WL 1066645, at *1 (S.D.Miss. Feb. 23, 2006). In denying the motion, Judge Senter wrote:

FN1. The plaintiffs each assert claims under

La. R.S. 22:658, 22:695, and 22:1220.

*3 1. Each property owner in Mississippi who had real and personal property damaged in Hurricane Katrina is uniquely situated. No two property owners will have experienced the same losses. The nature and extent of the property damage the owners sustain from the common cause, Hurricane Katrina, will vary greatly in its particulars, depending on the location and condition of the property before the storm struck and depending also on what combination of forces caused the damage. Thus, at least with respect to the issue of damages, each individual claim will require particular evidence to establish the cause of and the extent of the loss.
2. To the extent the property was insured, the particulars of coverage will vary from policy to policy.... In order to adjudicate the rights and liabilities between the policy holder and his insurance company, the particular terms of each policy must be considered.
Id. at *2. Similarly, in another case involving "hundreds of Plaintiffs [who were] joined in a single lawsuit, each asserting claims that ar[ose] out of damage to property caused by Hurricane Katrina, " the court concluded that
the Plaintiffs should be required to file separate complaints. Although there may be some common issues of law and fact, the Court finds that the Plaintiffs have not met the same transaction or occurrence prong of Rule 20(a). In a superficial sense, the hurricane was a common occurrence; however, the storm was vastly different in its effect depending on the specific geographic location of each particular home. Although Plaintiffs each held basically the same standard homeowner's policy, each insurance contract is a separate transaction.
Bradley v. Nationwide Mut. Ins. Co., No. 1:06CV528-LTS-RHW, 2006 WL 2594548, at *1 (S.D.Miss. Sept. 6, 2006); McFarland v. State Farm Fire & Cas. Co., No. 1:06CV466-LTS-RHW, 2006 WL 2577852, at * 1 (S.D.Miss. Sept. 6, 2006); Vaz v. Allstate Prop. & Cas. Co., No. 1:06CV481-LTS-RHW, 2006 WL 2583733, at *1 (S.D.Miss. Sept. 6, 2006).FN2
FN2. The situation before this Court is distinguishable from Johnson v. State Farm Fire & Casualty, Co., where that Section of this Court considered a motion to remand. No. 06-6248, 2006 WL 3714228, at *1 (E.D.La. Nov. 28, 2006) (Duval, J.). In Johnson, the joinder in question dealt with defendants, not plaintiffs, as is the case here. See id. at *2. The Johnson court noted that the "insurance contract[] is common among the parties.... [And] the common issues involve the allocation of damages among the parties [the insurer and the agent who sold the policy to the plaintiffs], and it could potentially lead to inconsistent results to allocate fault to litigate these claims in separate proceedings." Id. Here, however, the plaintiffs do not hold identical insurance policies, and there is only one defendant, eliminating the allocation-of-damages problem in Johnson.

This Court is persuaded by the reasoning of Comer and Bradley and concludes that the plaintiffs have failed to satisfy Rule 20(a)'s common transaction or occurrence requirement for permissive joinder. While each plaintiffs claims stem in some way from Hurricane Katrina, the hurricane can be considered no more than a common question of fact. It alone cannot serve as a common transaction or occurrence because the effects of the hurricane were unevenly felt, leaving each property owner in a unique situation based on the prior condition of the property owner's home, the previously negotiated insurance policy, and the immediate effects of the hurricane in that particular geographic area.

B.

Moreover, severance is also warranted in this instance under Rule 21 because a consolidated trial will result in undue prejudice to Metropolitan. Any practical benefits accrued through the conservation of judicial resources are likely to be outweighed by the burden imposed on Metropolitan in defending multiple claims, with different factual scenarios, in one trial. As Judge Senter noted in Comer, each owner of property damaged by Hurricane Katrina is "uniquely situated." 2006 WL 1066645, at *2. As a result, each plaintiff will need to prove the particulars of his or her insurance policy, the condition of the property before the hurricane struck, the cause of the damage (which may vary according to the location of the property), and the extent of the damage.

*4 Accordingly, the motion to sever is GRANTED.

Robert Bruce Woodruff, Algeier Woodruff PC, Morristown, NJ, for Plaintiffs.

Louis W. Childress, Jr., Ryan Linder, Childress & Jackson LLC, East Orange, NJ, for Defendants.

OPINION

GREENAWAY, JR., District Judge.

*1 This matter comes before this Court on the motion of Defendants City of Irvington (the "City"), Irvington Police Department (the "PD"), Alfredo Aleman ("Aleman"), and Christopher Burrell ("Burrell") (collectively "Defendants"), to sever the trial of Plaintiffs Jaime Lopez ("Lopez"), Arnold Daniels ("Daniels"), Willie McKenzie ("McKenzie"), and Hilbert Gresham ("Gresham") (collectively "Plaintiffs"), pursuant to FED. R. CIV. P. 21. For the reasons set forth below, Defendants' motion is denied.

I. BACKGROUND

On November 4, 2005, Plaintiffs filed a Complaint alleging, inter alia, that the City of Irvington and the Irvington Police Department "fail[ed] to properly supervise and monitor [the] K-9 Unit [of the PD, ] and in particular its officer Alfredo Aleman...." (Compl.3.) Plaintiffs argue that as a result of such failure, the City and PD "allow[ed] for a pattern and practice of conduct to exist whereby various suspected felons, while in custody and control of law enforcement officers[, ]" were mauled, maimed, and disfigured by Bullet, a canine under Defendant Aleman's control. ( Id. at 3-4.)

Specifically, Plaintiff Lopez claims that he was attacked by Defendant Aleman and Bullet. The parties agree that on or about May 2, 2004 Lopez was engaged in a burglary when Aleman apprehended and arrested him. (Final Pretrial Order 3, Dec. 20, 2007.) At the time of the arrest, Aleman "was the [c]anine handler [] of the K-9 Bullet."FN1 ( Id. ) Lopez alleges, and Defendants dispute, that during the arrest Aleman kicked Lopez in the ribs, and held him down on the floor while Bullet "bit [Lopez] and tore flesh from his left arm." ( Id. at 5.) Lopez also claims that Aleman ordered Bullet to "get" him. ( Id. ) Finally, Lopez claims that after he was handcuffed and placed in the back seat of a squad car, "Aleman released Bullet into the back seat with the doors closed[, ] and watched as the dog tore into [Lopez's] body and left shoulder." ( Id. )

FN1. The parties agree that on the dates of each of the alleged attacks, Defendant Aleman was the handler of Bullet. ( Id. 3-4.)

Next, Plaintiff Daniels claims that he was attacked by Bullet on June 29, 2005. The parties agree that Daniels was arrested while "in the attic of an unoccupied house... for crimes associated with entry into the unoccupied house." ( Id. at 4.) Daniels alleges, and Defendants dispute, that he followed the directions of the police officers involved in the arrest. ( Id. at 5.) In addition, Daniels states that Defendant Aleman grabbed and threw him to the ground. ( Id. ) At this time, Daniels claims, that Bullet bit him. ( Id. ) Daniels also alleges that Aleman picked Daniels up, threw him against a wall, and held him down while instructing Bullet to "get" him. ( Id. ) It was at Aleman's command that Bullet "repeatedly bit [Daniels] legs." ( Id. ) Daniels claims that even after he was handcuffed, he continued to be bitten by Bullet. ( Id. )

Plaintiff McKenzie alleges that he was also attacked by Bullet. The parties agree that "[o]n or about August 24, 2005, ... [McKenzie] was observed exiting from a stolen vehicle and was pursued, apprehended and arrested by police with the assistance of K-9 Police Dog, Bullet." ( Id. at 3.) McKenzie claims, and Defendants dispute, that after he was handcuffed, "Defendant[] Aleman released Bullet to attack [McKenzie] by biting and tearing at him." ( Id. at 5.)

*2 The next day, August 25, 2005, Plaintiff Gresham alleges that Bullet attacked him. The parties agree that "[o]n or about August 25, 2005, Plaintiff Gresham ran from police officers and was eventually caught, arrested by police with the assistance of K-9 Police Dog Bullet...." ( Id. at 4.) Gresham also argues, and Defendants dispute, that "[a]fter being handcuffed by police, Defendant[] Aleman released Bullet to attack [Gresham]. [Gresham] was bitten and ripped at by the dog." ( Id. at 5.)

Defendants filed the instant motion to sever seeking to separate the trial of each Plaintiff. ( See generally, Defs.' Mot. to Sever.) Defendants argue that Plaintiffs' claims should be severed because the claims "do not arise out of the same transaction or occurrence, " (Defs.' Br. in Supp. of Mot. to Sever 4), and because "Defendants will be seriously prejudiced by the fact that each of the plaintiffs [sic] will not be subject to sequestration thus restricting and otherwise harnessing efforts to prevent them from parroting each other's testimony, " ( id. at 3).

II. STANDARD OF REVIEW

"A district court has broad discretion in deciding whether to sever a party pursuant to Federal Rule of Civil Procedure 21 ." Boyer v. Johnson Matthey, Inc., No. 02-8382, 2004 U.S. Dist. LEXIS 9802, *3, 2004 WL 835082 (E.D.Pa. Apr. 16, 2004) (citing Fanning v. Black & Decker, Inc., No. 98-6141, 1999 U.S. Dist. LEXIS 3407, *2, 1999 WL 163628 (E.D.Pa. Mar. 18, 1999)) (emphasis in original); see also DIRECTV, Inc. v. Gallagher, No. 03-2474, 2004 U.S. Dist. LEXIS 28010, *3 (D.N.J. Feb. 4, 2004). "Rule 21 is most commonly invoked to sever parties improperly joined under Rule 20.'" Id. at *4 (emphasis in original). However, the Rule may also be invoked to prevent prejudice or promote judicial efficiency. Id. at *4 n. 1; see also United States v. Nat'l R.R. Passenger Corp., No. 86-1094, 2004 U.S. Dist. LEXIS 10867, *20-21, 2004 WL 1334726 (E.D. Pa. June 15, 2004) (citing Official Comm. of Unsecured Creditors v. Shapiro, 190 F.R.D. 352, 355 (E.D.Pa.2000) (stating that Rule 21 also "may be used to organize problematic issues other than joinder problems.")) (internal citation omitted).

In order to determine whether plaintiffs have been misjoined, a court must decide whether "they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or a series of transactions or occurrences[, ] and [] any question of law or fact common to all plaintiffs will arise in the action." FED. R. CIV. P. 20(a) (1); see also DIRECTV, Inc., 2004 U.S. Dist. LEXIS 28010, at *3. "Both the same transaction(s) and the common question elements must be satisfied before joinder can be permitted." Boyer, 2004 U.S. Dist. LEXIS 9802, at *5, 2004 WL 835082 (quoting In re Orthopedic Bone Screw Prods. Liab. Litig., No. MDL 1014, 1995 U.S. Dist. LEXIS 10138, *3 (E.D.Pa. July 17, 1995)).

"[C]ourts generally apply a case-by-case approach" when considering whether the facts of several claims constitute a single transaction or occurrence, or a series of transactions or occurrences. Id. at *5-6. "Transaction' is a word of flexible meaning[, and] may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship." Id. at *6 (quoting Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir.1974)). The second element, however, "does not require precise congruence of all factual and legal issues; indeed, joinder may be permissible if there is but one question of law or fact common to the parties." DIRECTV, Inc., 2004 U.S. Dist. LEXIS 28010, at *3-4 (quoting Morris v. Paul Revere Ins. Group, 986 F.Supp. 872, 885 (D.N.J.1997)).

*3 Once the court has resolved these threshold questions, it may then consider additional factors in determining whether to grant a motion to sever. These factors include

(1) whether the issues sought to be tried separately are significantly different from one another, (2) whether the separable issues require the testimony of different witnesses and different documentary proof, (3) whether the party opposing the severance will be prejudiced if it is granted, and (4) whether the party requesting the severance will be prejudiced if it is not granted.

Nat'l R.R. Passenger Corp., 2004 U.S. Dist. LEXIS 10867, at *22, 2004 WL 1334726 (citing Official Comm. of Unsecured Creditors, 190 F.R.D. at 355 (quoting German v. Fed. Home Loan Mortgage, 896 F.Supp. 1385, 1400 (S.D.N.Y.1995))).

III. DISCUSSION

First, Defendants argue that Plaintiffs are misjoined because the "factual predicate surrounding each apprehensi[on] and arrest do not arise out of the same transaction or occurrence[, and the plaintiffs] were arrested on different days at different locations by different officers." (Defs.' Br. in Supp. of Mot. to Sever 4.) Plaintiffs counter and argue that "[t]he actions of these four plaintiffs arise from a similar series of transactions or occurrences, and common questions of law and fact will arise in the trial of the action." (Pls.' Br. in Opp'n to Mot. to Sever 9.) This Court finds Plaintiffs' position more persuasive.

Plaintiffs claim that the City and PD "failed to properly supervise and monitor its K-9 Unit, " and as a result of such failure, permitted a pattern or practice of excessive force to exist among the police officers of the K-9 unit. (Final Pretrial Order 14, Dec. 20, 2007.) Each Plaintiffs' example of excessive force is alleged to have resulted from this pattern or practice. (Compl.4) (stating that "[s]uch actions were so significant and so similar in nature as to indicate such a pattern and practice of accepted conduct by defendant[ ] Aleman[, ] including the handcuffing of such suspects prior to the K-9 dogs being let loose to maul, maim and disfigure the suspects."); see also Boyer, 2004 U.S. Dist. LEXIS 9802, at *6, 2004 WL 835082 ("Essentially, Plaintiffs allege that each specific discriminatory action described in the complaint stemmed from the same pattern or practice.... Thus, each discriminatory act should be considered part of the same transaction or occurrence."). "Other courts [within this circuit] have found the common transaction element met when the plaintiffs alleged that a pattern or practice of discrimination existed." Boyer, 2004 U.S. Dist. LEXIS 9802, at *7, 2004 WL 835082. This Court, therefore, finds that the allegations in the Complaint arise from the same transaction, occurrence, or series of transactions or occurrences.

Similarly, this Court finds that there exists a common question of law or fact. Although Plaintiffs allegedly suffered different incidents of force, by different police officers and at different times and locations, the allegation of a pattern or practice of excessive force is a common question of fact central to each claim. See also Boyer, 2004 U.S. Dist. LEXIS 9802, at *8, 2004 WL 835082 ("Though Plaintiffs allegedly suffered different incidents of discrimination, some occurring on different work shifts, at the hands of different supervisors, and at different times, the purported existence of a discriminatory pattern or practice is a common question of fact that Plaintiffs' claims share."); DIRECTV, Inc., 2004 U.S. Dist. LEXIS 28010, at *4 (stating that "joinder may be permissible if there is but one question of law or fact common to the parties.").

*4 Second, Defendants argue that they will be seriously prejudiced if this Court does not sever Plaintiffs' claims. (Defs.' Br. in Supp. of Mot. to Sever 3.) However, Defendants do not offer any persuasive indication of prejudice.

When considering a motion to sever, a court may consider the following factors

(1) whether the issues sought to be tried separately are significantly different from one another, (2) whether the separable issues require the testimony of different witnesses and different documentary proof, (3) whether the party opposing the severance will be prejudiced if it is granted, and (4) whether the party requesting the severance will be prejudiced if it is not granted.

Nat'l R.R. Passenger Corp., 2004 U.S. Dist. LEXIS 10867, at *22, 2004 WL 1334726 (citing Official Comm. of Unsecured Creditors, 190 F.R.D. at 355 (quoting German v. Fed. Home Loan Mortgage, 896 F.Supp. 1385, 1400 (S.D.N.Y.1995))). Applying these factors to the case sub judice, this Court finds that the factors weigh in favor of denying the motion.

The first factor, regarding the issues sought to be tried separately, has been discussed above. Plaintiffs each allege that Defendants engaged in a pattern or practice of excessive force. (Final Pretrial Order 14-15, Dec. 20, 2007.) Similarly, each Plaintiff alleges that the attacks by Bullet indicate that the City and PD failed to supervise the officers of the K-9 unit. ( Id. at 14.)

Next, and by Defendants' own admission, several witnesses are common to each Plaintiffs' claim. For example, Defendants Aleman and Burrell, and Sergeant Burghardt are witnesses to the allegations underlying Plaintiffs Lopez's and Gresham's claims. ( Id. at 2); ( see also Defs.' Br. in Supp. of Mot. to Sever 1-2.) Defendant Aleman and Sergeant Burghardt are also witnesses to Plaintiff Daniels' claims. ( Id. ) Officer Love is a witness to Plaintiffs Lopez's and Daniels' claims; and Defendants Aleman and Burrell are witnesses to Plaintiff McKenzie's claims. ( Id. ) Although there are other witnesses to each of the plaintiffs' claims, there is significant overlap.

Finally, this Court finds that Plaintiffs will be prejudiced if the motion is granted, while Defendants will not be prejudiced if the motion is denied. Because Plaintiffs have alleged a pattern or practice of excessive force, they will need to provide the jury with sufficient evidence to meet their burden that a pattern or practice actually existed. This will be difficult, if not impossible, if separate trials commence. In addition, Defendants have offered no support for their allegation of prejudice.

IV. CONCLUSION

For the foregoing reasons, the motion of Defendants City of Irvington, Irvington Police Department, Alfredo Aleman, and Christopher Burrell, to sever Plaintiffs Jaime Lopez, Arnold Daniels, Willie McKenzie, and Hilbert Gresham, pursuant to FED. R. CIV. P. 21, is denied.

Lloyd Neil Pope, Lawton, OK, pro se.

Glenn H. Gorton, Lawton, OK, pro se.

ORDER

STEPHEN P. FRIOT, United States District Judge.

* Plaintiffs, Lloyd Neil Pope and Glenn H. Gorton, state prisoners appearing pro se and in forma pauperis, whose pleadings are liberally construed, bring this action pursuant to 42 U.S.C. 1983.

Magistrate Judge Valerie K. Couch's Report and Recommendation of July 31, 2007 is before the court. (Doc. no. 43, "the Report.") In her Report, the magistrate judge makes a number of recommendations. Each of the plaintiffs has filed objections to the Report. (Doc. nos.46, 47.) As required by 28 U.S.C. § 636(b)(1), the court has reviewed all objected to matters de novo.

Having concluded that review, and after careful consideration of plaintiffs' objections, the record, and the relevant authorities, the court finds that it agrees with the Report of the magistrate judge. It further finds that no purpose would be served by stating any further analysis here.

Accordingly, the Report and Recommendation of Magistrate Judge Couch is ACCEPTED, ADOPED, and AFFIRMED in its entirety, and the court enters the following more specific orders.

Plaintiff Pope is dropped as a party from this lawsuit pursuant to Rule 21 of the Federal Rules of Civil Procedure, without prejudice to refiling his claims in a separate action brought pursuant to 42 U.S.C. 1983.

Count I of the Complaint is dismissed for failure to state a claim upon which relief may be granted.

Plaintiff Gorton is granted leave to file a second amended complaint to re-assert appropriate claims from the first amended complaint and to add any additional claims, if appropriate, as alluded to in pending motions before the court. Plaintiff Gorton is required to file an amended complaint within 20 days of the date of this order.

The pending motions at document nos. 23, 29-39 and 41-42 are denied.

The Court Clerk is directed to refund to plaintiff Pope's prison trust account, the filing fees paid by Mr. Pope which, to date, total $158.09.

Plaintiff Gorton is required to pay the full filing fee in the amount of $350.00. Mr. Gorton has paid $69.37 of that fee to date.

To the extent that this matter relates to plaintiff Pope, this matter is referred back to the magistrate judge for the limited purpose of vacating and/or modifying the Orders to Agency (doc. nos.15-16) to reflect the change in allocation of the filing fee.

To the extent this matter relates to the claims asserted by plaintiff Gorton, this matter continues as a matter referred to the magistrate judge for further initial proceedings.

REPORT AND RECOMMENDATION

VALERIE K. COUCH, United States Magistrate Judge.

Plaintiffs, Lloyd Neil Pope and Glenn H. Gorton, state prisoners appearing pro se and in forma paupenis, bring this action pursuant to 42 U.S.C. 1983 alleging violations of their federal constitutional rights. The matter has been referred for initial proceedings consistent with 28 U.S.C. 636(b)(1)(B) and (C). An initial review of the Complaint has been conducted pursuant to 28 U.S.C. 1915A(a) and 28 U.S.C. 1915(e)(2)(B). For the reasons set forth below, it is recommended that Plaintiff Pope be dropped as a party from this lawsuit pursuant to Rule 21 of the Federal Rules of Civil Procedure, without prejudice to refiling his claims in a separate action. It is further recommended that Count I of the Complaint be dismissed for failure to state a claim upon which relief may be granted.

I. Plaintiffs' Claims

*2 Plaintiffs are cellmates currently incarcerated in the segregation unit at Lawton Correctional Facility (LCF), a private prison. Plaintiffs bring three Counts in their Amended Complaint and this Court leniently construes those Counts to allege the following claims.

In Count I, Plaintiffs allege they have been deprived of their constitutional right of access to the courts due to denial of access to the law library and to legal materials. Plaintiffs allege the law library is not staffed with persons knowledgeable in the law and that LCF is not following its own policies with respect to access to legal materials.

In Count II, Plaintiff Gorton alleges prison officials have acted with deliberate indifference towards his serious medical needs in violation of the Eighth Amendment. Plaintiff Gorton is a diabetic. He alleges he has not been allowed to monitor his blood sugar and has been denied use of a wheelchair. He also alleges it took prison officials over one hour to respond to a medical emergency though he does not identify the nature of the emergency. The Amended Complaint makes no reference to denial of medical care as to Plaintiff Pope.

In Count III, Plaintiffs allege unconstitutional conditions of confinement relating to the quality of food provided at LCF. Plaintiffs claim the food served is raw, undercooked and/or spoiled and lacks nutritionally adequate variety.

In their request for relief, Plaintiffs seek compensatory damages and injunctive relief.

II. Analysis

Before analyzing the sufficiency of the allegations contained in the Amended Complaint, the Court first examines whether it is proper to allow both plaintiffs to proceed in this action.

A. Improper Joinder of Plaintiffs

Permissive joinder is governed by Rules 20 and 21 of the Federal Rules of Civil Procedure. Rule 20(a) provides:

All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action....

Fed.R.Civ.P. 20(a). Pursuant to Rule 20(a), two requirements must be satisfied for permissive joinder. First, the plaintiffs must allege a right to relief arising from the same transaction or occurrence. Second, the plaintiffs must establish a common question of law or fact. Smith v. North American Rockwell Corp., 50 F.R.D. 515, 522 (N.D.Okla.1970). Where there is misjoinder of parties, Rule 21 permits the court, on its own initiative at any stage of the litigation, to drop any party. Fed.R.Civ.P. 21 ("Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.").

The allegations as presented in both the Amended Complaint and Brief in Support appear to be authored by Plaintiff Gorton. The vagueness and manner of wording make it difficult to determine the extent to which the allegations are asserted on behalf of one or both Plaintiffs. And, the allegations refer to specific and individual harm suffered by each Plaintiff.FN1 For example, in Count II, it appears only Plaintiff Gorton alleges a denial of medical care. His claims relate to his diabetic condition and the alleged denial of access to a wheelchair. However, in the motions filed after the Amended Complaint, it appears Plaintiff Pope may too be asserting a denial of medical care. See, e.g., Motion for Removal from Defendants' Custody [Doc. # 30] ("Pope has been having sharp piercing at the site of his recent surgery.... He has not had any of the regular post-op checkups that is [sic] required."). See also Motion for Injunction [Doc. # 33] ("Mr. Pope has been waiting... days now for his medication.").

FN1. After filing the Amended Complaint, Plaintiffs have filed a flood of motions which include further allegations that may support additional claims for relief. However, Plaintiffs have not sought leave to further amend the complaint to include additional claims. To the extent relevant, the allegations in these motions are discussed for purposes of determining whether joinder is proper.

*3 To state an Eighth Amendment violation based on deliberate indifference to serious medical needs, a prisoner must show both that the harm suffered is sufficiently serious (the objective component) and that defendants knew of and disregarded the risk of serious harm to the prisoner (the subjective component). See Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir.2006). While (subject to further amendment of the complaint) both Plaintiffs appear to assert claims based on alleged deliberate indifference to their serious medical needs, their claims clearly do not arise out of the same transaction or occurrence nor do they involve common questions of law or fact. See, e.g., Smith, 50 F.R.D. at 522 (permissible joinder improper even though plaintiffs' claims are based on same general legal theories). Plaintiffs will be required to prove the Defendants knew each Plaintiff suffered a substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to protect the Plaintiff The requisite showings demonstrate specific claims that differ considerably from one another. See, e.g., Parlow v. Heath, No. 3:94CV022 AS, 1994 WL 822462 (N.D.Ind. Nov. 9, 1994) (unpublished op.) (sua sponte dismissal of plaintiffs' 1983 complaint alleging violations arising from 11-day lock down, lack of access to the courts, and lack of proper medical treatment proper where each plaintiff attempted to "press their own personal claims arising out of distinct, though perhaps similar factual circumstances and it [was] clear that respective claims [would] require different proof').

The claims raised in Count I (denial of access to the courts) and Count III (unconstitutional dietary conditions) similarly raise claims involving distinct issues of law and fact. A prisoner claiming a denial of access to the courts must allege some actual injury in his ability to pursue a nonfrivolous legal claim. See Lewis v. Casey, 518 U.S. 343 (1996); Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir.1996). Allegations of actual injury in support of a denial of access to the courts claim necessarily vary from plaintiff to plaintiff and do not arise out of the same transaction or occurrence. See, e.g., Harris v. Spellman, 150 F.R.D. 130, 131 (N.D.Ill.1993) (permissive joinder of inmates' § 1983 claim not available where claims involved different occurrences). Because Plaintiffs' individualized showings of actual injury necessarily would not arise out of the same transaction or occurrence, joinder is not proper.

The same holds true for the claims raised in Count III of the Amended Complaint. Plaintiff Gorton alleges the food served at LCF is raw, undercooked and spoiled. In supplemental motions Defendant Gorton alleges that he is able to eat poultry but that he is getting "burned out" on the poultry because poultry is all that is ever served. See Motion of Deliberate Indifference to Dietary Needs [Doc. # 29]. He further alleges he is "starving." See Motion of Retaliation [Doc. # 34] at 2. See also Motion of Intimidation [Doc. # 39] at 1 ("[W]e are both starving because of all the poultry this facility serves. I Glenn Gorton do not want to see any chicken or turkey for the rest of my life. I am burned out on it.").

*4 Conversely, the motions address the non-poultry dietary needs of Plaintiff Pope and how these needs are not being met. See, e.g., Motion for Removal from Defendants' Custody [Doc. # 30] ("Mr. Pope is a non-poultry eater and they are telling him that certain food items are beef when they are not."); Motion for Court Order [Doc. # 35] ("We have evidence that [Pope's] non-poultry hypercaloric diet is permanent."); Motion of Refusal of Medication [Doc. # 37] ("Mr. Pope is a non-poultry eater and that is all this facility serves....").

Inmates have a right to be provided "nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it." Ramos v. Lamm, 639 F.3d 559, 570-571 (10th Cir.1980). "A substantial deprivation of food may be sufficiently serious to state a conditions of confinement claim under the Eighth Amendment." Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir.2002). To state such a claim, a prisoner must allege a sufficiently serious deprivation and establish that defendants were deliberately indifferent to a substantial risk of serious harm. Id. at 1222; see also Farmer v. Brennan, 511 U.S. 825, 832 (1994).

Here, the allegations indicate that the deprivation faced by each Plaintiff is unique as is the nature of the risk of serious harm. For Plaintiff Gorton, he contends the food is spoiled, lacks variety and is not edible. For Plaintiff Pope, his special dietary needs are not being met. Therefore, joinder is improper. See, e.g Rimel v. Bavh, No. 3:94-CV-616 AS, 1994 WL 750705 at *1 (N.D.Ind. Dec. 13, 1994) (unpublished op.) (though prisoners' claims arising out of the conditions of their confinement appeared similar, likelihood that individual damage claims would require different proof implicating different defendants made joinder improper).

In addition to these problems, unique questions of fact and law surround the issue of exhaustion of administrative remedies. Because Plaintiffs are challenging prison conditions at LCF, their action is subject to the exhaustion requirements of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1997e(a).FN2 On the form complaint, Plaintiffs have checked both the "yes" and "no" box in response to the question asking whether administrative remedies have been pursued. See Amended Complaint [Doc. # 28] at 5, § D(2). Plaintiff Gorton attaches to the original Complaint a number of administrative documents to support exhaustion of administrative remedies. See Complaint, Attachment 2 at 1-19, 22-26. Plaintiff Pope attaches only one request to staff pertaining to the claim raised in Count III as to unsanitary food. See id. at 20-21. Plaintiffs appear to allege prison officials interfered with their ability to pursue administrative remedies but have failed to identify the specific officials responsible. The exhaustion issue also involves distinct issues of fact as to each Plaintiff.

FN2. The PLRA's exhaustion requirement reads as follows:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. 1997e(a).

*5 Here, Plaintiffs' claims involve distinct issues of fact and require showings of deliberate indifference as to particularized risks of serious harm. The exhaustion requirement set forth in 42 U.S.C. 1997e(a) requires each Plaintiff to exhaust his administrative remedies prior to asserting his claims in a federal court action. Whether Plaintiffs have complied with this requirement also involves particularized proof as to each Plaintiff. Although Plaintiffs are cellmates and allege they have generally suffered similar types of wrongs, such general allegations are insufficient to establish the requisite commonality required for permissive joinder. As one court has observed, "prisoners' circumstances make joint litigation especially difficult." Hagan v. Rogers, No. 06-4491(JAG), 2007 WL 1362384 at *2 (D.N.J. May 7, 2007) (unpublished op.) (citing the need for each plaintiff to sign the pleadings, potential for changes in documents as they are circulated and possibility of coercion among inmates as circumstances making joinder improper); see also Wasko v. Allen County Jail, No. 1:06-CV-085 TLS, 2006 WL 978956 at *1 (N.D. Ind. April 12, 2006) (unpublished op.) (discussing similar practical difficulties of joint litigation involving inmates); Amir-Sharif v. Dallas County, No. 3:06-CV-0143-K, 2006 WL 2860552 at *3 (N.D.Tex. Oct. 5, 2006) (unpublished op.) (same). For all these reasons, joinder of Plaintiffs in this action is improper.

Rule 21 of the Federal Rules of Civil Procedure authorizes a court to drop misjoined parties from a lawsuit on its own initiative "on such terms as are just." Because it appears that the majority of the pleadings in this case have been authored by Plaintiff Gorton and that Gorton has been responsible for virtually all of the administrative prison grievances submitted, it is recommended that Plaintiff Pope be dismissed as improperly joined. The dismissal is without prejudice to Plaintiff Pope pursuing his claims in a separately filed 1983 action. See, e.g., Sabolsky v. Budzanoski, 457 F.2d 1245, 1249 (3d Cir.1972) (proper remedy in case of misjoinder is to grant severance or dismissal to the improper party if it will not prejudice any substantial right).

B. Screening of the Amended Complaint

This Court is obligated to review complaints filed by prisoners seeking redress from governmental entities, or officers or employees of governmental entities. See 28 U.S.C. 1915A(a). The Court is directed to "identify cognizable claims" and to dismiss the entire complaint or any portion of the complaint which "is frivolous, malicious, or fails to state a claim upon which relief may be granted" or "seeks monetary relief from a defendant who is immune from such relief" 28 U.S.C. 1915A(b)(1)-(2).

"Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Perkins v. Kansas Dept. of Corrections 165 F.3d 803, 806 (10th Cir.1999). In determining whether dismissal is proper, the Court must accept the allegations of the complaint as true and construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff. Id. If the complaint does not state "enough facts to state a claim to relief that is plausible on its face" dismissal is proper. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007).

*6 The claim raised in Count I of the Complaint fails to state a claim upon which relief may be granted and, therefore, that claim should be dismissed. Plaintiff Gorton alleges that he has been deprived of his constitutional right of access to the courts due to denial of access to the law library and to legal materials. Plaintiff complains that the law library is not staffed with persons knowledgeable in the law and that LCF is not following its own policies with respect to access to legal materials. However, Plaintiff Gorton has failed to demonstrate actual injury to support a claim of denial of access to the courts. See Lewis, 518 U.S. at 351 ("meaningful access to the courts is the touchstone" of a constitutional violation; "an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense" but must "go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim").

Moreover, "an inmate's right of access does not require the state to supply legal assistance beyond the preparation of initial pleadings in a civil rights action regarding current confinement or a petition for a writ of habeas corpus." Carper v. DeLand, 54 F.3d 613, 617 (10th Cir.1995). However, statements in Plaintiff Gorton's prison grievances indicate he seeks legal assistance for claims not subject to constitutional protections. In a Request to Staff dated September 29, 2005, he states he needs "law books" because he is "trying to break a trust set up by [his] parents." See Complaint, Attachment 2 at 18. In another Request to Staff, Plaintiff Gorton requests Oklahoma statutory materials relating to "property, " "marriage and family" and "wills." See id., Attachment 2 at 24.

Plaintiff Gorton has failed to allege facts demonstrating actual injury and appears to request legal assistance for matters unrelated to the conditions of his confinement or his conviction and sentence. Thus he has failed to state a claim upon which relief may be granted. Accordingly, the claim raised in Count I of the Amended Complaint should be dismissed for failure to state a claim upon which relief may be granted.

C. Pending Motions

As noted, Plaintiffs have filed numerous motions subsequent to the filing of the Amended Complaint. These motions contain allegations that supplement the claims raised and which attempt to raise additional claims for relief. For example, the motions contain allegations of retaliation by prison officials. If Plaintiff Gorton desires to further amend the complaint to include additional claims for relief, it is recommended that he be given leave to do so.FN3 The motions, however, should be denied as they do not provide an independent basis for relief. It is, therefore, recommended that Plaintiff Gorton be granted leave to file a Second Amended Complaint adding any additional allegations and/or claims as contained in the Motions. It is further recommended that the following motions be denied:

FN3. Plaintiff Gorton is reminded that as to all claims for relief currently raised or raised through further amendment of the complaint, he must show that the named Defendants personally participated in the alleged violation of his constitutional rights. See Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.1996).
*7 § Motion for Removal from Defendants' Custody [Doc. # 23]
§ Motion of Deliberate Indifference to Dietary Needs and Deliberate Starvation [Doc. # 29]
§ Motion for Removal from Defendants' Custody [Doc. # 30]
§ Motion to Have All Field Jackets and All Medical Jackets Subpoenaed [Doc. # 31]
§ Motion of Denial of Legal Services [Doc. # 32]
§ Motion for Injunction to Prohibit the Defendants from Withholding Medications and Interfering with Legal Mail [Doc. # 33]
§ Motion of Retaliation [Doc. # 34]
§ Motion for Court Order [Doc. # 35]
§ Motion for Evidentiary Hearing [Doc. # 36]
§ Motion for Refusal of Medication [Doc. # 37]
§ Motion of Intimidation by Defendants [Doc. # 39]
§ Motion of Refusal of Non-Poultry Diet [Doc. # 41]
§ Motion for Refusal of Non-Poultry Diet [Doc. # 42].

In addition, Plaintiffs have filed a Motion of Retaliation and Embezzlement [Doc. # 38]. It is not clear what relief the Plaintiffs seek through the filing of this motion though it appears they believe officials at LCF are improperly deducting and keeping funds from their prison trust accounts that instead should be paid to the Court towards satisfaction of the filing fee. The record reflects that to date, this Court has received filing fees from Defendant Gorton in the amount of $69.37, see Doc. # 12, and from Defendant Pope in the amount of $158.08, see Doc.11, 40. Thus, LCF is properly submitting the monies deducted from the Plaintiffs' trust accounts to this Court towards satisfaction of the filing fee. For this reason, it is recommended that Plaintiffs' Motion be denied.FN4

FN4. Plaintiffs have attached to their motion a copy of the statements for their respective inmate accounts for the month of May 2007. The statements include a posting for "filing fees # CIV-07-284-F" in the amount of $175.00, merely reflecting the portion of the $350 filing fee owed by each Plaintiff, not the amount deducted from their respective accounts.

At the outset of this action, the Court entered Orders [Doc.7-8] granting in forma pauperis status to each of the Plaintiffs. Those orders required Plaintiffs to jointly pay the full $350.00 filing fee. Based on the determination that Plaintiff Pope has been improperly joined and should be dismissed from this action, it is recommended that the Court Clerk refund to his prison trust account the filing fees paid by him in the amount of $158.08. See Fed. R. Civ. 21 (parties improperly joined may be dropped on such terms as are just). It is further recommended that Plaintiff Gorton be required to pay the full filing fee in the amount of $350.00 To date, the Court Clerk has collected $69.37 of that fee from Plaintiff Gorton. Should the District Court adopt this recommendation, the matter as it relates to Plaintiff Pope should be re-referred to the Magistrate Judge for the limited purpose of vacating and/or modifying the Orders to Agency [Doc.15-16] to reflect the change in allocation of the filing fee, and the original referral as to claims asserted by Plaintiff Gorton should continue for further initial proceedings.

RECOMMENDATION

It is recommended that Plaintiff Pope be dropped as a party from this lawsuit pursuant to Rule 21 of the Federal Rules of Civil Procedure, without prejudice to refiling his claims in a separate action brought pursuant to 42 U.S.C. 1983.

*8 It is further recommended that Count I of the Complaint be dismissed for failure to state a claim upon which relief may be granted.

In addition, it is recommended that should the District Court adopt this Report and Recommendation, Plaintiff Gorton be granted leave to file a second amended complaint to re-assert appropriate claims from the first amended complaint and to add any additional claims, if appropriate, as alluded to in pending motions before this Court. Plaintiff Gorton should be required to file an amended complaint within twenty days of any Order adopting the Report and Recommendation.

It is further recommended that the pending motions Doc.23, 29-39 and 41-42 be denied.

Finally, it is recommended that the Court Clerk be directed to refund to Plaintiff Pope's prison trust account the filing fees paid by him which, to date, total $158.08. It is further recommended that Plaintiff Gorton be required to pay the full filing fee in the amount of $350.00. Plaintiff Gorton has paid $69.37 of that fee to date. Should the District Court adopt this recommendation, the matter as it relates to Plaintiff Pope should be re-referred for the limited purpose of vacating and/or modifying the Orders to Agency poc.15-161 to reflect the change in allocation of the filing fee. With adoption of this recommendation, the referral as to claims asserted by Plaintiff Gorton would continue for further initial proceedings.

NOTICE OF RIGHT TO OBJECT

Plaintiffs are advised of their right to object to this Report and Recommendation. See 28 U.S.C. 636. Any objections must be filed with the Clerk of the District Court by August 20th, 2007. See LCvR72.1. Plaintiffs are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656 (10th Cir.1991).

STATUS OF REFERRAL

This Report and Recommendation does not terminate the referral by the District Judge in this matter.

Maurice Johnson Bey, Michigan City, IN, pro se.

Aurelius Allen Bey, Michigan City, IN, pro se.

Nelson Harris Bey, Michigan City, IN, pro se.

Antonio Putman Bey, Michigan City, IN, pro se.

OPINION AND ORDER

RUDY LOZANO, District Judge.

*1 This matter is before the court sua sponte pursuant to Fed.R.Civ.P. 20 and Fed.R.Civ.P. 21 for the purpose of determining whether the plaintiffs may jointly prosecute this case as a multi-plaintiff lawsuit. For the reasons set forth below, the court DISMISSES Aurelius Allen-Bey, Nelson Harris-El, and Antonio Putnam-Bey in this cause of action; (2) DIRECTS the clerk of this court to open a separate case for each dismissed plaintiff with the complaint from this case (DE 1) and the petitions to proceed in forma pauperis and motions to appoint counsel already filed separately by each plaintiff; and (3) DIRECTS the clerk to assign each of the newly opened cases to the same judge who is assigned to this case.

BACKGROUND

Pro se Plaintiffs Maurice Johnson-Bey, Aurelius Allen-Bey, Nelson Harris-El, and Antonio Putnam-Bey, who are prisoners confined at the Indiana State Prison, filed a complaint pursuant to 42 U.S.C. 1983 alleging the violation of their federally protected rights. Each of the plaintiffs signed the complaint, and each of them also submitted an individual petition to proceed in forma pauperis and separate motion to appoint counsel. The complaint is labeled a "Class Action Lawsuit."

DISCUSSION

Four prisoners confined at the Indiana State Prison seek to sue several Indiana Department of Correction officials in a multi-plaintiff lawsuit. "Because the Prison Litigation Reform Act ("PLRA") does not repeal or modify Rule 20, district courts must accept complaints filed by multiple prisoners if the criteria of permissive joinder are satisfied." Boriboune v. Berge, 391 F.3d 852, 855 (7th Cir.2004). Therefore, before allowing this multi-plaintiff prisoner lawsuit to proceed, the court must determine whether the permissive joinder requirements of Rule 20 are satisfied. "Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." Fed.R.Civ.P. 21.

[W]e accord wide discretion to a district court's decision concerning the joinder of parties. We have recognized that this discretion allows a trial court to consider, in addition to the requirements of Rule 20, other relevant factors in a case in order to determine whether the permissive joinder of a party will comport with the principles of fundamental fairness. If joinder would create prejudice, expense or delay the court may deny the motion.

Chavez v. Ill. State Police, 251 F.3d 612, 632 (7th Cir., 2001) (citations and quotation marks omitted). Based on the facts of this case, joinder is not appropriate.

Each of these plaintiffs is proceeding pro se and none of them may represent each other. Because of this, each plaintiff must read and sign each filing related to his claims. In this case, four plaintiffs are named in the caption of the complaint and each has signed the complaint. Though they succeeded in gathering every signature this time, doing so at the beginning of a lawsuit is easier than at any other time. Once convicted, an inmate can be relocated at any time, see Sandin v. Conner, 515 U.S. 472, 485, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), and inmates are constantly being released, transferred to another facility, or relocated within the prison such that they are no longer in contact with each other. When they are housed separately and a filing is not jointly signed, Fed.R.Civ.P. 5 requires that it be served on all other parties, including the other plaintiffs. For legitimate security reasons, institutional rules prohibit inmates from corresponding within and between facilities, thereby making compliance with Rule 5 difficult, if not impossible.

*2 The plaintiffs' complaint portends to be a class action. Though four of the inmates involved in this incident have already individually joined this case, the plaintiffs allege that there are others who have not.

Under Rule 23(a)(4), a class representative must fairly and adequately protect the interests of the class. A litigant may bring his own claims to federal court without counsel, but not the claims of others. This is so because the competence of a layman is clearly too limited to allow him to risk the rights of others.

Fvmbo v. State Farm, 213 F.3d 1320, 1321 (10th Cir.2000) (citations and quotation marks omitted). See also Rowe v. Davis, 373 F.Supp.2d 822, 828 (N.D.Ind.2005). Each of these plaintiffs is pro se and none of them can fairly and adequately protect the interest of the class.

Therefore, because it would be fundamentally unfair for this case to proceed with multiple pro se prisoner plaintiffs who will very likely be unable to comply with Rule 5, each of the named plaintiffs must be permitted to litigate his claims separately. Proceeding with multiple, separate litigation for each plaintiff under the same cause number would be distracting at best-and costly, confusing, and grossly inefficient at worst. The high risk of prejudice, expense and delay is unnecessary because separating different lawsuits into separate cause numbers is the routine manner for organizing court documents. Rule 21 provides that, "[p]arties may be dropped [from a case]... on such terms as are just." Though it would be unjust to merely dismiss all but the lead plaintiff, particularly here where three other plaintiffs also signed the complaint, it is just to drop the other plaintiffs from this case and direct the clerk to open separate cases for each of them.

Nevertheless, this does not preclude any or all of the plaintiffs from cooperating to the extent that they are able, nor does it prevent these cases from being consolidated for trial if that becomes appropriate at a later date. Rather, separating these pro se prisoners into individual cases will merely permit the efficient and just adjudication of their claims.

CONCLUSION

For the reasons set forth above, the court:

(1) DISMISSES Aurelius Allen-Bey, Nelson Harris-El, and Antonio Putnam-Bey in this cause of action;

(2) DIRECTS the clerk of this court to open a separate case for each dismissed plaintiff with the complaint from this case (DE 1) and the petitions to proceed in forma pauperis and motions to appoint counsel already filed separately by each plaintiff; and

(3) DIRECTS the clerk to assign each of the newly opened cases to the same judge who is assigned to this case.


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