Opinion
CIV-22-555-SLP
07-12-2022
TONY LAMONTE GREENE, LARRY DOAK DARVIN GRAY, RICHARD MILLER RICHARD HILL, MICHAEL LOWERY GARRY WILSON, BILLIE BYRD AND WILLIAM GEORGE COODEY, II Petitioners, v. UNITED STATES DEPARTMENT OF JUSTICE AND UNITED STATES DEPARTMENT OF INTERIOR Respondents.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Tony Lamonte Greene, Larry Doak, Darvin Gray, Richard Miller, Richard Hill, Michael Lowery, Garry Wilson, Billie Byrd and William George Coodey, II are in the custody of the Oklahoma Department of Corrections (DOC), incarcerated at the James Crabtree Correctional Center (JCCC) in Helena, Oklahoma, and have jointly signed and filed this civil rights action pursuant to 28 U.S.C. § 1361 and 1651. See ECF No. 1. Only Mr. Greene has submitted an Application (Motion) for leave to proceed in forma pauperis and supporting affidavit. See ECF No. 2. Pursuant to an order entered by United States District Judge Scott L. Palk, this matter has been referred to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B).
Prisoner's petition for writ of mandamus is “civil action” within meaning of statute governing prisoner's civil action in forma pauperis (IFP); allowing prisoners to continue filing actions as they had before Prison Litigation Reform Act, merely by framing pleadings as petitions for mandamus, would allow loophole Congress surely did not intend in its stated goal of discouraging frivolous and abusive prison lawsuits. 28 U.S.C.A. § 1915 . Green v. Nottingham, 90 F.3d 415, 417 (10th Cir.1996).
A review of the petition has been conducted pursuant to 28 U.S.C. § 1915A(a). Based on that review, the undersigned recommends that the Court DISMISS, without prejudice, Petitioners Larry Doak, Darvin Gray, Richard Miller, Richard Hill, Michael Lowery, Garry Wilson, Billie Byrd and William George Coodey, II 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 pro-se Petitioners who are prisoners, joinder is complicated by the Prison Litigation Reform Act (PLRA). That statute requires each Petitioner to pay the entire filing fee even if each would qualify for pauper status. See 28 U.S.C. § 1915(b)(1). Petitioner Greene has filed an Application (Motion) for leave to proceed in forma pauperis and supporting affidavit (ECF No. 2), but no other Petitioner has provided the Court any information about his ability or willingness to pay the filing fee.
The Tenth Circuit Court of Appeals has not squarely decided this issue. See Woodruffv. 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, Petitioners must all 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 Petitioner. See Fed.R.Civ.P. 5(a). Most importantly, one inmate may not legally represent another. See Lyons v. Zavaras, 308 Fed.Appx. 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, all Petitioners are inmates and it appears that Petitioners are currently housed in the same facility and are permitted to communicate freely with each other. However, prison movements and regulations could, at any time, restrict interpersonal communication between the Petitioners. Any change in the current housing of the Petitioners would render communication between Petitioners impossible. Preventing Petitioners 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 Petitioner. 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 Petitioner Greene has been the dominant filer thus far, the undersigned finds that Petitioners Larry Doak, Darvin Gray, Richard Miller, Richard Hill, Michael Lowery, Garry Wilson, Billie Byrd and William George Coodey, II should be dismissed from the action and each 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 Petitioners Larry Doak, Darvin Gray, Richard Miller, Richard Hill, Michael Lowery, Garry Wilson, Billie Byrd and William George Coodey, II from the action without prejudice. Also, if the Court adopts the recommendation, the undersigned anticipates issuing an order on Petitioner Tony Lamonte Greene's Application (Motion) for leave to proceed in forma pauperis and supporting affidavit (ECF No. 2) and ordering him to file an amended pleading limiting requests for relief specific to Mr. Greene only.
III. NOTICE OF RIGHT TO OBJECT
Each Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of Court by July 29, 2022 in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Each Petitioner 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.