Opinion
Case No. CIV-18-967-R
10-11-2018
RONALD TITLBACH, RICHARD PITT, Plaintiffs, v. B. ANTONELLI (Warden); M. TOWER (Correctional Officer); MR. SEIGA (Lieutenant); MR. COOPER (Correctional Officer); MR. HICKS (Disciplinary Hearing Officer); MR. BARR (Correctional Counselor); MS. REESE (Counselor), Defendants.
REPORT AND RECOMMENDATION
Plaintiffs, federal inmates, filed a Complaint under Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971), alleging they suffered numerous constitutional violations while housed at the Federal Correctional Institution in El Reno, Oklahoma. See Compl. [Doc. No. 1]. United States District Judge David L. Russell has referred the matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). For the reasons set forth below, it is recommended that the Court dismiss Plaintiff Richard Pitt, without prejudice, on grounds of infeasible joinder.
I. Plaintiffs' Joinder
Generally, Fed. R. Civ. P. 20(a) allows multiple plaintiffs to join together when: (1) "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 (2) "any question of law or fact common to all plaintiffs will arise in the action." Fed. R. Civ. P. 20(a)(1)-(2). However, the Court can disallow joinder if it is infeasible or prejudicial. See Hefley v. Textron, Inc., 713 F.3d 1487, 1499 (10th Cir. 1983) (holding that Fed. R. Civ. P. 20 "is permissive; whether to allow such joinder is left to the discretion of the trial judge"); Gentry v. Lawton Corr. Facility, CIV-14-310-W, 2014 WL 2712305, at *1 (W.D. Okla. May 13, 2014) (unpublished report and recommendation) (holding that "the Court has discretion to disallow joinder when it would be infeasible or prejudicial"), adopted, 2014 WL 2727196 (W.D. Okla. June 16, 2014) (unpublished district court order).
To litigate together, Plaintiffs must both sign every document that they jointly file. See Fed. R. Civ. P. 11(a). And, any motion that one files separately must be served on the other. See Fed. R. Civ. P. 5(a). Most importantly, one inmate may not legally represent another. See Lyons v. Zavaras, 308 F. App'x 252, 255 (10th Cir. 2009) (holding that the district court did not abuse its discretion in denying inmate's motion, filed on behalf of other prisoners, because "a pro se litigant may not represent other pro se litigants in federal court"). To that end, the Court finds it very problematic that Plaintiffs are housed not only in separate institutions, but in separate states. See Compl. at 2 (noting that Plaintiff Titlbach is currently housed at the federal penitentiary in Leavenworth, Kansas while Plaintiff Pitt is currently housed at the federal institution in Pollock, Louisiana).
Despite being housed in two separate facilities, in two separate states, Plaintiffs both allegedly signed the Complaint on September 28, 2018. See Compl. at 15. The Court finds this highly suspect.
In sum, the Court finds joinder infeasible and one Plaintiff should be dismissed. See Fed. R. Civ. P. 21 ("Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party."); Gentry, 2014 WL 2712305 at *2; Pinson v. Whetsel, No. CIV-06-1372-F, 2007 WL 428191 at *1 (W.D. Okla. Feb. 1, 2007) (unpublished order) (denying inmate's request to join multiple other pro se inmates as plaintiffs, based on logistical and related concerns). Because Plaintiff Titlbach filed an application to proceed in forma pauperis, [Doc. No. 2], and Plaintiff Pitt did not, the Court recommends that Plaintiff Pitt be dismissed without prejudice.
RECOMMENDATION
Based on the foregoing, the Court should dismiss Plaintiff Pitt, without prejudice, and instruct him that if he wishes to pursue his claims, he must file an independent action.
NOTICE OF RIGHT TO OBJECT
Plaintiffs are advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by November 1, 2018. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See 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.
ENTERED this 11th day of October, 2018.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE