Opinion
2:01-CV-0088.
October 22, 2001.
ORDER TO SEVER
Plaintiff BRIAN D. McQUEEN, proceeding pro se and while a prisoner confined in the custody of Texas Department of Criminal Justice, Institutional Division, at the Clements Unit, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-named defendants. Plaintiff has paid the filing fee and is not proceeding in forma pauperis.
The plaintiff sues the above-named defendants alleging delays in treatment or the failure to treat his Hepatitis C, nodules in his abdomen, hypoglycemia, a nasal infection, and his teeth.
Rule 18, Federal Rules of Civil Procedure, allows a plaintiff to join "either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party." Alternatively, Rule 20, Federal Rules of Civil Procedure, allows the joinder of several parties if the claims arose out of a single transaction and contain a question of fact or law common to all the defendants. Plaintiff's complaint does not comport with the provisions of Rule 18 and Rule 20, Federal Rules of Civil Procedure.
Plaintiff's tooth claim arises from a May 31, 1999, softball accident during which plaintiff's front teeth were hit and bent toward the roof of his mouth. Plaintiff relocated the teeth and saw a dentist the next day. The dentist told plaintiff he would have to wait and see if the teeth lived or died. After submitting requests on August 4, 1999, October 7, 1999, and January 5, 2000, plaintiff was next seen on January 5, 2000, at which time the dentist recommended a root canal on one front tooth, that several cavities be filled in other teeth, and that a partial be made to replace fifteen missing teeth. Plaintiff was informed he would first have to pass a toothbrush test; however, he failed it on January 14, 2000, and on June 25, 2000. Thus, plaintiff did not receive the recommended dental care and was offered only the alternative of having the offending teeth removed. Plaintiff refused, asking to have the dental work done despite his inability to pass the toothbrush test. Plaintiff's request was denied.
Plaintiff identifies defendants KARR, a dentist, and BARBAREE, a dental hygenist, as responsible for the lack of care to his teeth. Further, by his allegations, plaintiff mentions defendants McKINNEY, LINTHICUM, and GONZALES as persons to whom he complained without success concerning this issue. If plaintiff is attempting to pursue claims against defendants McKINNEY, LINTHICUM, and GONZALES based on their failure to adequately investigate and resolve his complaints, these claims lack an arguable basis in law and are frivolous. Inasmuch as the results of his complaints or grievances have no bearing on the duration of his confinement, the plaintiff cannot show the existence of a state-created liberty interest in an inmate grievance procedure or any federally protected right that his letters of complaint be investigated and resolved to his satisfaction. See, Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995).
Defendant BARBAREE administered plaintiff's June 27, 2000, toothbrush test, the second plaintiff took, and advised plaintiff he had failed it and could not receive the treatment earlier recommended by Dr. KARR on January 5, 2000.
By his claim against defendants KARR and BARBAREE, plaintiff claims a refusal of dental care. The refusal was based on plaintiff's inability to pass the toothbrush test. Unlike the other incidents recounted in his original complaint, plaintiff has not refused consent to the recommended treatment or merely experienced delay in receiving treatment, plaintiff has been refused the recommended treatment based on his inability to pass the toothbrush test. Plaintiff's claim arising from this situation not only lacks an issue of fact common to the other incidents in his complaint, it lacks a common issue of law. Further, defendants BARBAREE and KARR, the only persons against whom plaintiff has asserted a possibly non-frivolous claim in connection with his dental care, are not implicated in any of plaintiff's other claims.
Before passage of the Prison Litigation Reform Act, a prisoner plaintiff proceeding pro se and in forma pauperis was often allowed to assert improperly-joined claims against defendants lacking any connection except that they were encountered during the plaintiff's incarceration. This was done for purposes of judicial economy and to avoid placing procedural barriers before the pro se litigant. However, in light of the "three-strikes" and fee-payment provisions of the PLRA, to continue this practice would be to defeat, or at least greatly dilute, the clear intent of the fee payment provision of the statute and to allow prisoner litigants to circumvent the "three-strikes" provision.
The PLRA contains a "three-strikes" provision requiring collection of the fee after the dismissal for frivolousness, etc., of three actions or appeals brought by prisoner proceeding in forma pauperis, unless the statutory exception is satisfied. Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996); 28 U.S.C. § 1915(g).
Under the fee provisions of the Prison Litigation Reform Act of 1995 (PLRA), "a prisoner is not entitled to commence an action or file an appeal without prepayment in some form (§ 1915(b)(2)), a privilege afforded to nonprisoners under § 1915(a)(1)." Gay v. Texas Department of Corrections State Jail Div., 117 F.3d 240, 241 (5th Cir. 1997). This fee provision was designed to deter frivolous prisoner litigation by making all prisoner litigants feel the deterrent effect created by liability for filing fees. Williams v. Roberts, 116 F.3d 1126, 1127-28 (5th Cir. 1997).
For the reasons set forth above, it is clear plaintiff's claims against defendants KARR and BARBAREE should be severed from the instant suit.
IT IS HEREBY ORDERED:
1. Plaintiff's claims against defendants KARR and BARBAREE are severed from the instant suit and shall be pursued in a new cause opened by the Clerk, along with a copy file prepared for the Court, and styled as follows: BRIAN D. McQUEEN, Plaintiff, V. CARTER KARR, M.D., Individually, and ROMALEE BARBAREE, Individually, Defendants.
2. Plaintiff's claims against the remaining defendant(s) shall be retained under the present cause number and shall be styled as follows: BRIAN D. McQUEEN v. TIMOTHY REVELL, Dr., Individually, WILLIAM E. GONZALEZ, M.D., Individually, DAVID BASSE, M.D., Individually, CHARLES RIDGE, Dr., Individually, Dr. DAVIS, Individually, Dr. KAHADERIA, Individually, JOHN BAINES, Individually, PAUL SU TENORIO, Individually, PATRICIA GARISON, Individually, MARIA GLORIA, Individually, TAMMY URANGA, Individually, CHARLIE ADAMS, Individually, KATHLEEN OLDHAM, Individually, LATRICIA HEREDIA, Individually, LANNETTE LINTHICUM, Dr., Individually and in her Official Capacity, ROCHELLE McKINNEY, Individually and in her Official Capacity, Dr. NGUYEN, Individually and in her Official Capacity, GLENN McFERRON, M.D., Individually and in her Official Capacity, JOHN SIMMS, Dr., Individually and in her Official Capacity, and KEITH PRICE, Individually and in her Official Capacity, Defendants.
3. In the file of the severed case, the Clerk shall include a certified copy of the original complaint and the instant Order.
IT IS SO ORDERED.