Robert Tuft v. State of Texas, et al

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UNPUBLISHED OPINION FILED. [10-20135 Affirmed in Part, Reversed in Part, and Remanded] Judge: PEH , Judge: FPB , Judge: JWE Mandate pull date is 10/25/2010 [10-20135]

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Robert Tuft v. State of Texas, et al Doc. 0 Case: 10-20135 Document: 00511251911 Page: 1 Date Filed: 10/04/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-20135 S u m m a r y Calendar October 4, 2010 Lyle W. Cayce Clerk R O B E R T ALEXANDER TUFT, P la in t if f -A p p e lla n t v. THE STATE OF TEXAS; VERNON PITTMAN, Warden-Jester 3; JEROLD BRAGGS, Assistant Warden, Jester 3; GUY SMITH, Assistant Regional Director-Texas D e p a r t m e n t of Criminal Justice; DOUG WALDRON, Assistant Regional Director-Texas Department of Criminal Justice; J. P. GUYTON, Assistant Regional Director-Texas Department of Criminal Justice; SUSAN DOSTAL, University of Texas Medical Branch Medical Program Administrator; NATHANIEL QUARTERMAN, Director Texas Department of Criminal Justice-Correctional Institutions Division; MELANIE POTTER, MLP P.A., University of Texas Medical Branch; JALYN WILSON, P.T. University of Texas Medical Branch; PATSY GUERRA, (Velasquez), Texas Department of Criminal Justice Access to Courts; VICKY BARROWS, Texas Department of Criminal Justice Access to Courts; ARLINE WALKER, Texas Department of Criminal Justice Access to Courts; RACHEL CROSBY, C.O.V. Texas Department of Criminal Justice; CHERYL LAWSON, Texas Department of Criminal Justice Grievance Analyst; MARK A. ANDREWS, Texas Department of Criminal Justice Chaplain; JOHN AND JANE DOE(S), Texas Department of Criminal Justice/University of Texas Medical Branch, Texas Department of Criminal Justice-Correctional Institutions Division Staff, D e fe n d a n t s -A p p e lle e s A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CV-846 Dockets.Justia.com Case: 10-20135 Document: 00511251911 Page: 2 No. 10-20135 Date Filed: 10/04/2010 B e fo r e HIGGINBOTHAM, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* R o b e r t Tuft, Texas prisoner # 1062966, appeals the dismissal of his 42 U .S .C . 1983 civil rights action for failure to prosecute under Federal Rule of C iv i l Procedure 41(b). Tuft's amended complaint against over a dozen d e fe n d a n t s raised nine claims relating to the conditions of his confinement, the fa ilu r e to evacuate for a hurricane, the denial of access to the courts, the in fr in g e m e n t of his religious freedom, and retaliation by prison officials. The d is t r ic t court ordered Tuft to file a second amended complaint that contained o n ly claims related to a single set of facts in accordance with Federal Rules of C iv il Procedure 18 and 20. When he failed to do so, district court dismissed T u ft 's lawsuit without prejudice under Rule 41(b). We review such a dismissal "for abuse of discretion." Larson v. Scott, 157 F .3 d 1030, 1032 (5th Cir. 1998). However, because at least some of Tuft's claims w o u ld not be time barred, the scope of the discretion is narrowed. See Berry v. C I G N A / R S I -C I G N A , 975 F.2d 1188, 1190-91 (5th Cir. 1992). Under Rule 20(a)(2), parties may be joined as defendants if the plaintiff a s ser t s a claim against them "jointly, severally, or in the alternative with respect t o or arising out of the same transaction, occurrence, or series of transactions or o c c u r r e n c e s " and "any question of law or fact common to all defendants will arise i n the action." A district court has discretion under Rule 20(a) to control the s c o p e of a lawsuit by limiting the number of defendants a plaintiff may hail into c o u r t in a particular case. Arrington v. City of Fairfield, 414 F.2d 687, 693 (5th C ir . 1969). In addition, "the creative joinder of actions" by prisoner plaintiffs to a v o id the strictures of the Prison Litigation Reform Act of 1995 (PLRA), Pub. L. 1 0 4 -1 3 4 , 804-05, 110 Stat. 1321, 1321-73 to -75 (2006) (codified in relevant Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * 2 Case: 10-20135 Document: 00511251911 Page: 3 No. 10-20135 Date Filed: 10/04/2010 p a r t at 28 U.S.C. 1915, 1915A), should be discouraged. Patton v. Jefferson C o r r . Ctr., 136 F.3d 458, 464 (5th Cir. 1998). In this case, the district court properly found that Tuft's amended c o m p la in t transgressed the limitations in Rule 20(a). However, where an action is time barred following a dismissal without prejudice, the standard of review is t h e same as if the action had been dismissed with prejudice. Berry, 975 F.2d at 1 1 9 1 . In this case, there is not a "clear record of delay or contumacious conduct," a n d the district court has not "expressly determined that lesser sanctions would n o t prompt diligent prosecution." Id. In addition, the record does not show "that t h e district court employed lesser sanctions that proved to be futile." Id. I n fact, under Federal Rule of Civil Procedure 21, "[m]isjoinder of parties is not a ground for dismissing an action." Instead, a district court, "on motion o r on its own, . . . may at any time, on just terms, add or drop a party" and "may a ls o sever any claim against a party." FED. R. CIV. P. 21. In other words, a court fa c e d with misjoinder "`has two remedial options: (1) misjoined parties may be d r o p p e d on such terms as are just; or (2) any claims against misjoined parties m a y be severed and proceeded with separately.'" Acevedo v. Allsup's C o n v e n ie n c e Stores, Inc., 600 F.3d 516, 520 (5th Cir. 2010) (quoting DirectTV, I n c . v. Leto, 467 F.3d 842, 845 (3d Cir. 2006) (internal quotation marks and c it a t io n omitted))). Because the record does not show that Tuft delayed the p r o c e e d in g s in this case, acted contumaciously, or deliberately disobeyed court o r d e r s , the district court abused its discretion "when it dismissed this entire a c t io n , rather than simply dismissing" misjoined claims, dropping parties, or b o th . Id. at 522; see also Berry, 975 F.2d at 1191-92. A cco r d in g ly , we affirm the district court's finding of misjoinder, reverse the d is m is s a l of Tuft's entire lawsuit, and remand the case for further proceedings c o n s is t e n t with this opinion. We disclaim any limitation on the district court's a u t h o r it y on remand to dismiss any of Tuft's claims on any other basis, such as 3 Case: 10-20135 Document: 00511251911 Page: 4 No. 10-20135 Date Filed: 10/04/2010 a n y PLRA provisions that may be applicable. 1915A; 42 U.S.C. 1997e(e). See, e.g.,28 U.S.C. 1915; A F F I R M E D in part; REVERSED in part; REMANDED. 4

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