Opinion
21-CV-10152 (LTS)
12-06-2021
TREVOR FORREST; KWAINE THOMPSON, Plaintiffs, v. DEPARTMENT OF CORRECTION, et al., Defendants.
ORDER
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE.
Trevor Forrest and Kwaine Thompson, who are currently detained in the George R. Vierno Center on Rikers Island, filed this unsigned pro se complaint claiming that Defendants violated their constitutional right to practice their Muslim faith and subjecting them to lockdown practices that impede their ability to access medical services and recreation. (ECF 2.) Plaintiffs submitted two applications for leave to proceed in forma pauperis (IFP), but both are deficient.(ECF 1, 5.) Both Plaintiffs submitted prisoner authorizations and a motion for pro bono counsel. (ECF 3, 4, 6.) For the reasons set forth below, the claims of Forrest and Thompson are severed under Fed.R.Civ.P. 21.
One IFP application lists only Forrest's name in the caption, but only Thompson signed it, and thus it is not clear to whom the information applies. (ECF 1.) The other IFP application, signed only by Thompson, is incomplete because the signature page is taken from an application for pro bono counsel. (ECF 5.)
DISCUSSION
A. Order Severing Claims
Generally, Rule 20 of the Federal Rules of Civil Procedure allows multiple plaintiffs to join in one action if (1) they assert any right to relief arising out of the same occurrence or series of occurrences, and (2) if any question of law or fact in common to all plaintiffs will arise in the action. See, e.g., Kalie v. Bank of Am. Corp., ECF No. 12-CV-9192 (PAE), 2013 WL 4044951, at *3 (S.D.N.Y. Aug. 9, 2013) (Courts “look to the logical relationship between the claims and determine ‘whether the essential facts of the various claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit'” (quoting United States v. Aquavella, 615 F.2d 12, 22 (2d Cir. 1979))).
Courts have the authority to deny joinder, or to order severance under Rule 21 of the Federal Rules of Civil Procedure, even without a finding that joinder is improper, if joinder “will not foster the objectives of the rule, but will result in prejudice, expense or delay.” Wright & Miller, Fed. Prac. & Proc. § 1652 (3d ed.) (citations omitted); see Wyndham Assoc. v. Bintliff, 398 F.2d 614, 618 (2d Cir. 1968) (Fed. R. Civ. P. 21 “authorizes the severance of any claim, even without a finding of improper joinder, where there are sufficient other reasons for ordering a severance”); Ghaly v. U.S. Dep't of Agric., 228 F.Supp.2d 283, 292 (S.D.N.Y. 2002) (noting that “district courts have broad discretion to decide whether joinder is appropriate, even when the requirements of Rule 20(a) have been met”) (citation omitted).
In determining whether to deny joinder or order severance of parties, courts consider the requirements of Rule 20 and additional factors, “including (1) whether severance will serve judicial economy; (2) whether prejudice to the parties would be caused by severance; and (3) whether the claims involve different witnesses and evidence.” Kehr v. Yamaha Motor Corp., 596 F.Supp.2d 821, 826 (S.D.N.Y. 2008) (considering motion to sever under Fed.R.Civ.P. 20 and 21); see also Laureano v. Goord, ECF No. 06-CV-7845 (SHS) (RLE), 2007 WL 2826649, at *8 (SD.N.Y. Aug. 31, 2007) (When considering severance, “courts should be guided by ‘considerations of convenience, avoidance of prejudice to the parties, and efficiency'” (quoting Hecht v. City of New York, 217 F.R.D. 148, 150 (S.D.N.Y. 2003)). While Forrest's and Thompson's claims are similar in nature, the facts underlying their claims are specific to each plaintiff.
Even if Forrest and Thompson were properly joined in this action, however, the Court finds that the practical realities of managing this pro se two-prisoner litigation militate against adjudicating their claims in one action. As pro se litigants, Forrest and Thompson may appear only on their own behalf; one may not appear as an attorney for the other. See United States v. Flaherty, 540 F.3d 89, 92 (2d Cir. 2008) (“[A]n individual who is not licensed as an attorney ‘may not appear on another person's behalf in the other's cause'”) (citations omitted); Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998) (“[B]ecause pro se means to appear for one's self, a person may not appear on another person's behalf in the other's cause”).
In addition, Rule 11(a) of the Federal Rules of Civil Procedure requires that every pleading, written motion, or other paper be signed by every party personally who is unrepresented. During the course of this action, each plaintiff would therefore be required to sign any motion or notice filed. But because of the transitory nature of a pretrial detention facility such as Rikers Island, where an inmate could be released or transferred at any time, and because of security concerns related to inmate correspondence and face-to-face communications, Forrest and Thompson would have at best only a very limited opportunity to discuss case strategy, share discovery, or even provide each other with copies of the motions and notices that they file with the Court. Further, this can result in piecemeal submissions, delays, and missed deadlines. See Perkins v. City of New York, ECF No. 14-CV-3779 (WHP), 2014 WL 5369428, at *1 (S.D.N.Y. Oct. 20, 2014) (finding that multi-prisoner case should be severed under Fed.R.Civ.P. 21 into individual actions based on unwieldy complaint, security considerations, and plaintiffs' likely inability to jointly litigate the case because they were housed in different facilities or given limited opportunities to associate).
Based on these logistical issues, the Court concludes that allowing this case to proceed as a two-plaintiff case would not be fair to Forrest and Thompson and would not achieve judicial economy. Allowing each plaintiff to proceed separately on the other hand, would facilitate the fair and efficient disposition of the litigation.
The Court will therefore sever this action into individual cases. Trevor Forrest will proceed as the sole plaintiff in this action. Kwaine Thompson will be assigned a new case number. A copy of the complaint, Thompson's prisoner authorization, the deficient IFP applications (ECF 1, 2, 3, and 5) and this order will be docketed in the new case. The cases will proceed as separate actions from this point on, and Forrest and Thompson will not be regarded as co-plaintiffs, except upon further order of the Court.
The severance of Forrest's and Thompson's claims into individual cases does not mean that their claims cannot be considered or tried together. If appropriate, the Court can deem.
B. Declaration of Intent to Proceed as a Plaintiff
Plaintiff Forrest did not sign the complaint. As discussed above, Rule 11(a) of the Federal Rules of Procedure provides that “[e]very pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name - or by a party personally if the party is unrepresented.” Fed.R.Civ.P. 11(a); see Local Civil Rule 11.1(a). The Supreme Court of the United States has interpreted Rule 11(a) to require “as it did in John Hancock's day, a name handwritten (or a mark handplaced).” Becker v. Montgomery, 532 U.S. 757, 764 (2001).
The Court directs Plaintiff Forrest, within 30 days, to sign and submit the attached declaration. Plaintiff should include docket number 21-CV-10152 (LTS) on that form.
C. Leave to proceed IFP
To proceed with a civil action in this Court, a prisoner must either pay $402.00 in fees - a $350.00 filing fee plus a $52.00 administrative fee - or, to request authorization to proceed without prepayment of fees, submit a signed IFP application and a prisoner authorization. See 28 U.S.C. §§ 1914, 1915. If the Court grants a prisoner's IFP application, the Prison Litigation Reform Act requires the Court to collect the $350.00 filing fee in installments deducted from the prisoner's account. See 28 U.S.C. § 1915(b)(1). A prisoner seeking to proceed in this Court without prepayment of fees must therefore authorize the Court to withdraw these payments from his account by filing a “prisoner authorization, ” which directs the facility where the prisoner is incarcerated to deduct the $350.00 filing fee from the prisoner's account in installments and to send to the Court certified copies of the prisoner's account statements for the past six months. See 28 U.S.C. § 1915(a)(2), (b).
The $52.00 administrative fee for filing a civil action does not apply to persons granted IFP status under 28 U.S.C. § 1915.
Plaintiff Forrest did not submit a completed IFP application. Within thirty days of the date of this order, Plaintiff must either pay the $402.00 in fees or submit the attached IFP application. If Plaintiff submits the IFP application, it should be labeled with docket number 21-CV-10152 (LT S).
Plaintiff is cautioned that if a prisoner files a federal civil action or appeal that is dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, the dismissal is a “strike” under 28 U.S.C. § 1915(g). A prisoner who receives three “strikes” cannot file actions IFP as a prisoner, unless he is under imminent danger of
D. Motion for pro bono counsel
The factors to be considered in ruling on an indigent litigant's request for counsel include the merits of the case, Plaintiff's efforts to obtain a lawyer, and Plaintiff's ability to gather the facts and present the case if unassisted by counsel. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are “[t]he factor which command[s] the most attention.” Cooper, 877 F.2d at 172.
Because it is too early in the proceedings for the Court to assess the merits of the action, the motion for counsel is denied without prejudice to renewal at a later date.
CONCLUSION
The Court severs the claims of Trevor Forrest and Kwaine Thompson under Fed.R.Civ.P. 21. Trevor Forrest will proceed as the sole plaintiff in this action. Trevor Forrest is directed to sign and return the attached declaration form and IFP application under this docket number, 21-CV-10152 (LTS).
The motion for pro bono counsel is denied without prejudice, and the Clerk of Court is directed to terminate it. (ECF 4.)
The Clerk of Court is further directed to open a separate civil action with a new docket number for Plaintiff Kwaine Thompson. A copy of the complaint, the two deficient IFP applications, and Thompson's prisoner authorization (ECF 1, 2, 5, 6) and this order shall be docketed in the new case. Once the new case is opened, the Court will direct Kwaine Thompson to submit an IFP application and declaration form establishing his intent to proceed as a plaintiff.
The Clerk of Court is directed to mail a copy of this order to Trevor Forrest and Kwaine Thompson and note service on the docket.
SO ORDERED.