Opinion
Case No. CIV-21-297-D
04-13-2021
MIGUEL ADRIAN ADAMS and JOEDELL ROBERT PERKINS Plaintiff(s), v. THE GEO GROUP INC., et al., Defendant(s).
REPORT AND RECOMMENDATION
Miguel Adrian Adams and Joedell Robert Perkins are in the custody of the Oklahoma Department of Corrections (DOC), incarcerated at the Lawton Correctional Facility (LCF) in Lawton, Oklahoma, and have jointly filed this civil rights action pursuant to 42 U.S.C. § 1983. See ECF No. 1. Only Mr. Adams properly signed the complaint and submitted an Application (Motion) for leave to proceed in forma pauperis and supporting affidavit. See ECF No. 2. Both Plaintiffs submitted individual supporting briefs. See ECF Nos. 3 and 4. Pursuant to an order entered by United States District Judge Joe Heaton, this matter has been referred to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B).
A review of the complaint has been conducted pursuant to 28 U.S.C. § 1915A(a). Based on that review, the undersigned recommends that the Court DISMISS, without prejudice, Plaintiff Joedell Robert Perkins on grounds of infeasible joinder.
I. 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 has discretion to disallow joinder when it is infeasible or prejudicial. See Hefley v. Textron, Inc., 713 F.2d 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"); Pinson v. Whetsel, No. CIV-061372-F, 2007 WL 428191, at *1 (W.D. Okla. Feb. 1, 2007) (unpublished order) (holding that "the Court can disallow joinder when it would be infeasible or prejudicial").
First, when the action involves multiple plaintiffs who are prisoners, joinder is complicated by the Prison Litigation Reform Act (PLRA). That statute requires each plaintiff to pay the entire filing fee even if each would qualify for pauper status. See 28 U.S.C. § 1915(b)(1). Plaintiff Adams has filed an Application (Motion) for leave to proceed in forma pauperis and supporting affidavit (ECF No. 2), but Plaintiff Perkins has provided the Court no information about his ability or willingness to pay the filing fee.
The Tenth Circuit Court of Appeals has not squarely decided this issue. See Woodruff v. State, 49 Fed. Appx. 199, 202 n. 1 (10th Cir. Oct. 7, 2002) (unpublished op.) ("We have no occasion to decide whether the [Prison Litigation Reform Act] permits multi-plaintiff actions . . ." (citations omitted)). But this Court has disallowed joinder in a case involving multiple prisoner plaintiffs, based on the requirement under the PLRA that each inmate pay the full filing fee. See Pinson v. Whetsel, No. CIV-06-1372-F, 2007 WL 428191, at *1 (W.D. Okla. Feb. 1, 2007).
Second, to litigate together, Plaintiffs must both sign every document that they jointly file. See Fed. R. Civ. P. 11(a). Any motion that one files separately must be served on the other plaintiff. 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"). As noted above, both Plaintiffs are inmates and it appears that Plaintiffs are currently housed in the same cell and are permitted to communicate freely with each other. However, prison movements and regulations could, at any time, restrict interpersonal communication between the Plaintiffs. Any change in the current housing of the Plaintiffs would render communication between Plaintiffs impossible. Preventing Plaintiffs from efficiently and effectively conferring with one another, reviewing proposed pleadings, and ultimately impeding their abilities to meet the court's deadlines.
Finally, when multiple names appear on a complaint, the district court can open a separate case for each plaintiff. See Smith v. Corr. Med. Servs., 2012 WL 12906573, at *3 (D.N.M. June 21, 2012) (directing clerk to open separate cases for each prisoner); Brull v. Kansas, 2010 WL 3829580, at *1 (D. Kan. Sept. 22, 2010) (instructing the "clerk to file a separate action on behalf of each petitioner"); Hubbard v. Haley, 262 F.3d 1194, 1198 (11th Cir. 2001) (PLRA requires a separate filing fee for each prisoner and prevents prisoners from joining claims under Fed. R. Civ. P. 20). Given the practical realities of pursuing joint litigation, the undersigned finds that joinder is infeasible. 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."). As Plaintiff Adams has been the dominant filer thus far, the undersigned finds that Plaintiff Perkins should be dismissed from the action and be instructed that if he wishes to pursue his claims, he must file an independent action.
II. RECOMMENDATION
Based on the foregoing, the undersigned finds that joinder is infeasible and recommends that the Court DISMISS Plaintiff Joedell Robert Perkins from the action without prejudice. Also, if the Court adopts the recommendation, the undersigned anticipates issuing an order on Plaintiff Miguel Adrian Adams' Application (Motion) for leave to proceed in forma pauperis and supporting affidavit (ECF No. 2) and ordering him to file an amended complaint limiting the claims to his own personal allegations.
III. NOTICE OF RIGHT TO OBJECT
Each Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of Court by April 30, 2021 in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Each Plaintiff is further advised that any failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
IV. STATUS OF REFERRAL
This Report and Recommendation does not terminate the referral of the District Judge in the captioned matter.
ENTERED on April 13, 2021.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE