Brand v. Hetzel et al (INMATE 2)

Filing 18

ORDER directing that: (1) Plaintiff's 14 objections to the Magistrate Judge's order are OVERRULED in part and SUSTAINED in part, as set out; (2) Plaintiff's 14 motion for reassignment of this case to a new Magistrate Judge is DENIE D; (3) The 11 order of the Magistrate Judge is VACATED in part, as set out; further ORDERED that Plaintiff file a second amended complaint on or before February 1, 2013, as further set out; the Clerk of the Court is DIRECTED to send Mr. Brand a form for use in filing a complaint under § 1983; ORDERED that this case is REFERRED back to the Magistrate Judge for further proceedings consistent with this order. Signed by Chief Judge William Keith Watkins on 1/18/13. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JAMES EDWARD BRAND,
# 169195,
Plaintiff,
v.
GARY HETZEL, et al.,
Defendants.

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CASE NO. 2:12-CV-940-WKW
[WO]

ORDER
Plaintiff James Edward Brand resides at Easterling Correctional Facility, but
he is not enjoying his involuntary stay. In order to secure better conditions for himself
and his fellow inmates, he brought this action against Warden Gary Hetzel and others.
But the initial complaint (Doc. # 1) was hardly a model of clarity, so the Magistrate
Judge ordered Mr. Brand to file an amended complaint that complied with Rules 8 and
10 of the Federal Rules of Civil Procedure. (Doc. # 8.)
Mr. Brand filed his first amended complaint on November 29, 2012. (Doc.
# 10.) The new complaint consisted of this district’s standard inmate complaint form,
accompanied by a twelve-page, handwritten complaint. Unsatisfied that the amended
complaint solved the problems with the first, the Magistrate Judge ordered Mr. Brand

to try again and threatened to recommend dismissal if the next complaint is not up to
par. (Doc. # 11.)
The matter comes before the court on Mr. Brand’s objection to that order.
(Doc. # 14.) Because Mr. Brand objected to the Magistrate Judge’s nondispositive
order, the court must “modify or set aside any part of the order that is clearly
erroneous or is contrary to law.” Fed. R. Civ. P. 72(a).
As announced by the United States Supreme Court, federal courts take a liberal
approach toward joinder: “[T]he impulse is toward entertaining the broadest possible
scope of action consistent with fairness to the parties; joinder of claims, parties and
remedies is strongly encouraged.” United Mine Workers of Am. v. Gibbs, 383 U.S.
715, 724 (1966). That policy is embodied in Rule 18(a) of the Federal Rules of Civil
Procedure, which “grants plaintiffs complete freedom to join in a single action all
claims that they may have against any of the defendants.” In re Beef Indus. Antitrust
Litig., 600 F.2d 1148, 1168 (5th Cir. 1979). As a court outside this circuit noted, Rule
18(a) allows joinder of claims that “arise out of separate and independent transactions
or occurrences.” MGD Graphic Sys., Inc. v. A&A Bindery, Inc., 76 F.R.D. 66, 68
(E.D. Pa. 1977). In light of this controlling authority, any order requiring Mr. Brand
to file a new complaint and pay a separate filing fee for claims that are joinable under
Rule 18(a) would be contrary to law. See Fed. R. Civ. P 83(b) (“A judge may regulate
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practice in any manner consistent with federal law [and] rules adopted under 28
U.S.C. §§ 2072 and 2075 . . . .”).
The order of the Magistrate Judge also instructs Mr. Brand to file his amended
complaint on the court’s form in accordance with Local Rule 9.1. That rule, however,
does not require use of the forms (although it is “strongly encouraged”). At any rate,
both of Mr. Brand’s complaints begin with a completed copy of the court’s form. Mr.
Brand’s decision to attach a handwritten complaint expounding upon the three claims
he set out in the form complaint does not violate any Federal Rule of Civil Procedure,
local rule, or order of the court. So long as his handwritten complaint complies with
the applicable rules, Mr. Brand may format his complaint in whatever manner he
chooses. He is, however, strongly encouraged to use the court’s form, as he has done
in the past.
The Magistrate Judge’s order also faults the amended complaint for “fail[ing]
to describe how the conduct . . . of each of the named defendants . . . [and] the matters
about which Plaintiff complains have resulted in a violation of his constitutional
rights.” (Doc. # 11, at 2 (emphasis in original).) The amended complaint, however,
sets out in detail the nature of the constitutional violations Mr. Brand alleges. In the
first count, Mr. Brand accuses three Defendants of enforcing a policy that prohibits
him from attending religious services: “Plaintiff . . . is prohibited from religious
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activities such as attending services.” In support of his Eighth Amendment claim, Mr.
Brand lists a litany of prison conditions ranging from dirty kitchens to overcrowded
showers. He also claims the medical care available at Easterling is so bad that it
almost killed him and has killed others. (Doc. # 10 ¶ 47). As an inmate, Mr. Brand
is forced to live with those conditions, so to the extent such conditions are
unconstitutional, they violate his rights. Finally, Count III alleges two law librarians
and the warden are depriving Mr. Brand of access to legal materials, an alleged
violation of his First and Fourteenth Amendment Rights.
But other parts of the complaint are admittedly difficult to understand. For
instance, Count III appears to include some sort of procedural due process claim
against several non-parties. Whenever necessary to promote clarity, claims based on
separate occurrences must be pleaded in different counts. Fed. R. Civ. P. 10. The
Magistrate Judge found Mr. Brand’s complaint violated that Rule, and that conclusion
is neither clearly erroneous or contrary to law. Thus, to the extent Mr. Brand objects
to the Magistrate Judge’s order to replead his complaint in compliance with Rule 10,
his objection is due to be overruled.
It is therefore ORDERED that
(1)

Plaintiff’s objections (Doc. # 14) to the Magistrate Judge’s order are
OVERRULED in part and SUSTAINED in part, as set out above;
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(2)

Plaintiff’s motion for reassignment of this case (Doc. # 14) to a new
Magistrate Judge is DENIED;

(3)

The order of the Magistrate Judge (Doc. # 11) is VACATED in part, as
set out above;

Further, because the court did not vacate the portion of the Magistrate Judge’s
order which determined Mr. Brand’s complaint violated Rule 10 of the Federal Rules
of Civil Procedure, he is ORDERED to file a second amended complaint on or before
February 1, 2013. Mr. Brand’s first amended complaint shall be superseded by the
second amended complaint. This means Mr. Brand shall no longer rely on the first
amended complaint. In accordance with the Magistrate Judge’s Order, the second
amended complaint must set out each of his claims in separate counts (i.e., his claim
of denial of access to a law library and his claim based on lack of an inmate grievance
procedure should not both be included in a single count). The Clerk of the Court is
DIRECTED to send Mr. Brand a form for use in filing a complaint under § 1983
(which Mr. Brand is strongly encouraged, but not required, to use under Local Rule
9.1).
Finally, it is ORDERED that this case is REFERRED back to the Magistrate
Judge for further proceedings consistent with this order.

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DONE this 18th day of January, 2013.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE

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