Opinion
CIV-23-747-R
09-11-2023
PHILLIP LEE KELLEY et al, Plaintiffs, v. KEVIN STITT et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Pursuant to an order entered by United States District Judge David L. Russell, 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, on grounds of infeasible joinder all listed Plaintiffs-other than Phillip Lee Kelley.
Phillip Lee Kelley, in the custody of the Oklahoma Department of Corrections (DOC), incarcerated at the Dick Conner Correctional Center (DCCC) in Lexington, Oklahoma, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1). Mr. Kelley also lists George Isbill, Rocky Ward, Robert Jones, Larry Chaney, Roger Palmer, Larry Barnett, Marvin Harm, Randolph Blackwell, Anthony Stewart, Bill Chucolate, Larry Bartell, Dennis Funkhauser, Dennis Glidewell, Billie Miller, Manuel Chavez, Sean Grigsby, Zachary Furguson, Donald Wilson, Charles Shaw, David Chartier, David Sadler, Anthony Decker, Robert Wilson, Herbert Hendrix, DJ Ray Yates, Patrick Watkins, Roy Easterwood, Jeremy Hill, Calvin Eslick, and Brant Crow as Plaintiffs in the case style. The details within the Complaint are mostly specific to Mr. Kelley-however when establishing claims and identifying the parties, Mr. Kelley specifically names himself and “et al Plaintiffs”, makes allegations for “Petitioners” and requests relief (including monetary) on behalf of “Petitioners.”
Mr. Kelley has properly signed the Complaint, but none of the other named Plaintiffs did so. In addition, no affidavits, briefs, or attachments were received to explain claims specific to any other Plaintiff. Mr. Kelley did not pay the filing fee, nor did he submit an application (motion) for leave to proceed in forma pauperis and supporting affidavit.
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). No Plaintiff has either paid the filing fee or made application (motion) for leave to proceed in forma pauperis and supporting affidavit. The filing fee will be discussed below.
Second, to litigate together, Plaintiffs 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 plaintiff. 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”). Here the Court has no information as to the location of the other inmate Plaintiffs, if all are housed in the same facility, or if they are all permitted to communicate freely with each other. However even without that information, 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 in the instant case. 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 Kelley is the dominant filer thus far, the undersigned finds that all Plaintiffs other than Plaintiff Phillip Lee Kelley should be dismissed from this action, namely, George Isbill, Rocky Ward, Robert Jones, Larry Chaney, Roger Palmer, Larry Barnett, Marvin Harm, Randolph Blackwell, Anthony Stewart, Bill Chucolate, Larry Bartell, Dennis Funkhauser, Dennis Glidewell, Billie Miller, Manuel Chavez, Sean Grigsby, Zachary Furguson, Donald Wilson, Charles Shaw, David Chartier, David Sadler, Anthony Decker, Robert Wilson, Herbert Hendrix, DJ Ray Yates, Patrick Watkins, Roy Easterwood, Jeremy Hill, Calvin Eslick and Brant Crow. Ordinarily notice would be provided instructing each party that if they wish to pursue similar claims, they must file an independent action. Here, the Court is without adequate information to provide such notice.
II. FILING FEE
Plaintiff must either pay the $402.00 filing fee or be granted leave to proceed without prepayment of fees. 28 U.S.C. §§1914; 1915; LCvR3.2. Plaintiff has neither paid the filing fee in accordance with §1914 and LCvR3.2 nor submitted a motion for leave to proceed in forma pauperis which conforms to the statutory requirements of 28 U.S.C. § 1915(a)(2) and includes a certificate executed by an authorized officer of the appropriate penal institution stating (1) the amount of money or securities currently on deposit to the prisoner's credit in any institutional account; (2) the average monthly deposits to the prisoner's account for the 6-month period immediately preceding the filing of the action; and (3) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of this action.
The total filing fee, if not granted leave to proceed in forma pauperis, is $402.00, which reflects the statutory fee of $350.00. See 28 U.S.C. § 1914(a). In addition, an administrative fee of $52.00 must be paid. See Judicial Conf. Sched. of Fees, Dist. Ct. Misc. Fee Sched. ¶ 14.
III. RECOMMENDATION
Based on the foregoing, the undersigned finds that joinder is infeasible and recommends that the Court DISMSS all Plaintiffs other than Plaintiff Phillip Lee Kelley from this action without prejudice, namely, George Isbill, Rocky Ward, Robert Jones, Larry Chaney, Roger Palmer, Larry Barnett, Marvin Harm, Randolph Blackwell, Anthony Stewart, Bill Chucolate, Larry Bartell, Dennis Funkhauser, Dennis Glidewell, Billie Miller, Manuel Chavez, Sean Grigsby, Zachary Furguson, Donald Wilson, Charles Shaw, David Chartier, David Sadler, Anthony Decker, Robert Wilson, Herbert Hendrix, DJ Ray Yates, Patrick Watkins, Roy Easterwood, Jeremy Hill, Calvin Eslick and Brant Crow. If the Court adopts the recommendation, the undersigned further recommends that Plaintiff Phillip Lee Kelley be required to file an Amended Complaint (utilizing the Court's approved form) limiting the claims to his own personal allegations. Plaintiff Kelley should also be required to either pay the filing fee in accordance with §1914 and LCvR3.2 or submit an application for leave to proceed in forma pauperis.
IV. NOTICE OF RIGHT TO OBJECT
Plaintiff Kelley is advised of his right to file an objection to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by September 15, 2023. See 28 U.S.C. § 636(b)(1); and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
V. STATUS OF REFERRAL
This Report and Recommendation does not terminate the referral of the District Judge in the captioned matter.