Opinion
1:02-cv-05561-AWI-LJO-P, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 48), ORDER DENYING MOTION TO DISMISS AND MOTION TO DROP DEFENDANT ANDREWS (Doc. 43).
August 22, 2005
ORDER REQUIRING DEFENDANTS TO RESPOND WITHIN THIRTY DAYS
Plaintiff, Joseph Louis Paz, III ("plaintiff"), is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302.
On May 27, 2005, the Magistrate Judge filed Findings and Recommendations herein which were served on the parties and which contained notice to the parties that any objections to the Findings and Recommendations were to be filed within thirty (30) days. On June 29, 2005, defendants filed a motion to extend time, to and including July 14, 2005. On July 12, 2005, the court granted defendants until July 14, 2005 to respond. On July 14, 2005, defendants filed objections to the Magistrate Judge's Findings and Recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 73-305, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis.
In the objections, Defendants contend that the Magistrate Judge erred in finding exhaustion because there is no evidence Plaintiff filed administrative appeals to the third level. In the Findings and Recommendations, the Magistrate Judge did not make a finding that Plaintiff exhausted his administrative remedies. Rather, the Magistrate Judge found that by only citing to evidence showing that Plaintiff had not appealed to the third level, Defendants had not met their burden of proof on Defendants' motion. The court agrees with this finding.
In the objections, Defendants contend that Plaintiff could not have been given the relief he sought at lower levels because Plaintiff complains the violations continued to occur long after this action was filed. Because Defendants' motion regarding exhaustion will be denied without prejudice, Defendants are free to raise additional evidence and arguments concerning exhaustion to the Magistrate Judge. The court declines to consider any new evidence or arguments concerning exhaustion at this time. A new theory cannot properly be raised in objections to Findings and Recommendations. Greenhow v. Secretary of HHS, 863 F.2d 633, 638-39 (9th Cir. 1988), overruled on other grounds by United States v. Hardesty, 977 F.2d 1347 (9th Cir. 1992). Factual assertions which could have been but were not presented to the Magistrate Judge should be given no consideration when the court is deciding whether to adopt Findings and RecommendationsSundaram v. County of Santa Barbara, 2001 WL 540515, *1 (C.D.Cal. 2001); Beam System, Inc. v. Checkpoint Systems, Inc., 1997 WL 423113, *9 n. 9 (C.D.Cal. 1997). "[A]llowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrates Act." Greenhow, 863 F.2d at 638. Thus, nothing in the objections persuades the court that the Magistrate Judge erred in recommending Defendants' motion to dismiss be denied on the ground that Defendants failed to meet their burden.
Defendants also contend the Magistrate Judge erred in failing to recommend the court grant Defendants' motion to "drop" Defendant Andrews. Rule 21 of the Federal Rules of Civil Procedure provides:
Misjoinder of parties is not ground for dismissal of an action. 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. Any claim against a party may be severed and proceeded with separately.
Rule 21 itself sets forth no substantive standards for joinder.Pan Am. Airways v. United States Dist. Ct., 523 F.2d 1073, 1080 (9th Cir. 1975). The cases imply that parties are misjoined when they fail to satisfy either of the preconditions for permissive joinder of parties set forth in Rule 20(a). 5 C. Wright and A. Miller § 1683; see also e.g., Michaels Bldg. Co. v. Ameritrust Co., 848 F.2d 674 (6th Cir. 1988); Pan Am. Airways, 523 F.2d at 1080. Thus, Rule 21 applies when the claims asserted by or against the joined parties do not arise out of the same transaction or occurrence or do not present some common question of law or fact. See Fed.R.Civ.Pro. 20(a); Pan Am. Airways, 523 F.2d at 1080.
A motion under Rule 21 to add, drop, or sever parties is addressed to the discretion of the court. Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997); Intercon Research Assocs., Ltd. v. Dresser Indus., Inc., 696 F.2d 53, 56 (7th Cir. 1982); 2 Motions in Federal Court § 6:25 (3d ed.). The Court of Appeals will affirm the dismissal of a party for misjoinder unless this court is left with a definite and firm conviction that the trial court committed a clear error of judgment.Letherer v. Alger Group, L.L.C., 328 F.3d 262, 266 (6th Cir. 2003).
Analysis of the provisions of Rules 20 and 21 of the Federal Rules of Civil Procedure, and the principles underlying those Rules, persuades the court that the Magistrate Judge's recommendation that the court not drop Defendant Andrews as a Defendant is correct. Andrews appears to be a party who could be joined under Rule 20 with the permission of the court. The claims against Andrews are based on his failure to provide certain necessities while Plaintiff was housed in the Security Housing Unit ("SHU"). The claims against the other defendants concern their finding that Plaintiff was a validated gang member, requiring his confinement in the SHU. These claims are sufficiently related as to avoid Defendant Andrews being dropped from this action. As explained by the Magistrate Judge, it is plaintiff's validation as a gang member that caused his placement in the SHU, which in turn caused Defendant Andrews to allegedly not give Plaintiff hygiene materials. In addition, the court has examined other relevant factors and determined that dropping Defendant Andrews is not necessary to comport with the principles of fundamental fairness. See Desert Empire Bank v. Ins. Co. of North America, 623 F.2d 1371, 1375 (9th Cir. 1980). Defendants have not shown how litigating Plaintiffs' claims in one action results in any prejudice.
To the extent Defendants believe litigating the claims against Defendant Andrews with the remaining claims will result in the jury hearing unnecessary evidence, the court would find the remedy for this potential problem would be to sever Defendant Andrews, not drop him from this action. At this time, there is no motion to sever before the court. If Defendants believe litigating the claims in this action in separate proceedings would be beneficial, Defendants are free to file a motion to sever. Defendants may wish to forgo filing such a motion until the issue of exhaustion concerning Defendant Andrews is resolved.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, filed May 27, 2005, are ADOPTED IN FULL;
2. Defendants' motion to dismiss on the basis of exhaustion is DENIED WITHOUT PREJUDICE;
3. Defendants' motion to "drop" Defendant Andrews and the claim against him from this action is DENIED without prejudice to refiling a motion to sever the claim against Defendant Andrews,
3. Defendants SHALL respond to the complaint within thirty (30) days from the date of service of this order.
IT IS SO ORDERED.