Bargo et al v. Hobbs et al

Filing 39

ORDER APPROVING AND ADOPTING 7 24 PROPOSED FINDINGS AND PARTIAL RECOMMENDATIONS in their entirety; denying as moot 2 co-plaintiff Westerman's motion to proceed ifp and dismissing him as a plaintiff in this action; denying 3 co-plaintiff Munnerlyn's motion to proceed ifp and dismissing him as a plaintiff in this action; dismissing defendants Hobbs, Watson, Naylor, Roland, Evans, and Iko as defendants in this action; dismissing plaintiff Bargo's voice stress analysis claims without prejudice; and dismissing plaintiff Bargo's cruel and unusual punishment and deliberate indifference claims without prejudice. Signed by Judge Kristine G. Baker on 04/08/2015. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JEROME ALLEN BARGO,
ADC #75423, et al.
v.

PLAINTIFFS

Case No. 5:14-cv-00393 KGB-JTK

RAY HOBBS, et al.

DEFENDANTS
ORDER

The Court has received Proposed Findings and Recommendations submitted by United
States Magistrate Judge Jerome T. Kearney (Dkt. No. 7) (“the first Proposed Findings and
Recommendations”); the timely objections filed by plaintiff Jerome Allen Bargo, which he styles
as a motion for reconsideration (Dkt. No. 12); the supplemental objections filed by Mr. Bargo,
which he styles as a supplemental motion for reconsideration (Dkt. No. 13), and Judge Kearney’s
order granting in part and denying in part Mr. Bargo’s motion to reconsider (Dkt. No. 15).
Plaintiff Marion Gene Westerman filed a motion to dismiss (Dkt. No. 16). Plaintiff Robert
Harold Munnerlyn filed objections (Dkt. No. 18), which were submitted nearly one month after
the deadline for filing objections.

After a review of the first Proposed Findings and

Recommendations, and all objections and related filings received, as well as a de novo review of
the record, the Court adopts the first Proposed Findings and Recommendations (Dkt. No. 7).
Also before the Court are Proposed Findings and Recommendations submitted by Judge
Kearney (Dkt. No. 24) (“the second Proposed Findings and Recommendations”). Mr. Bargo and
Mr. Munnerlyn filed objections which they styled as a motion for reconsideration of Judge
Kearney’s Order (Dkt. No. 28).

After a review of the second Proposed Findings and

Recommendations, and all objections and related filings received, as well as a de novo review of
the record, the Court adopts the second Proposed Findings and Recommendations (Dkt. No. 24).

Plaintiffs Mr. Bargo, Mr. Westerman, and Mr. Munnerlyn filed motions to proceed in
forma pauperis in this pro se action against defendants (Dkt. Nos. 1-3).

In their initial

complaint, plaintiffs allege due process violations, violations of their rights against selfincrimination, and retaliation associated with the use of computerized voice stress analysis
(“CVSA”) test results to convict them of disciplinary charges. They also assert claims of cruel
and unusual punishment due to forced labor beyond their physical capacities, improper job
assignments in contravention of their medical classifications, and deliberate indifference to their
serious medical needs.
The first Proposed Findings and Recommendations recommend that this Court adopt the
position that the only common claim between the plaintiffs is that “concern[ing] the use of voice
stress analysis test results to convict them of disciplinary charges” (Dkt. No. 7, at 3-4). The
Proposed Findings and Recommendations also determine that this claim “does not state a
constitutional claim for relief” (Id. at 4). The Proposed Findings and Recommendations found
that the “other allegations asserted in the Complaint” were “sufficiently distinct and separate to
require that each Plaintiff pursue his own separate § 1983 claim” (Id.). Based on these findings,
Judge Kearney recommended that this Court deny the motions to proceed in forma pauperis filed
by Mr. Westerman and Mr. Munnerlyn and dismiss Mr. Westerman and Mr. Munnerlyn from
this action.
Mr. Bargo filed a motion and supplemental motion to reconsider (Dkt. Nos. 12, 13). In
response, Judge Kearney granted in part Mr. Bargo’s request and ruled that Mr. Bargo may
include in his Amended Complaint, which Judge Kearney directed him to file, allegations related
and necessary to his due process claims (Dkt. No. 15). Judge Kearney denied Mr. Bargo’s
motion and supplemental motion to reconsider in all other respects (Id.).

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Judge Kearney subsequently granted Mr. Westerman’s motion to dismiss his claims from
the action (Dkt. No. 17). Accordingly, Mr. Westerman’s motion to proceed in forma pauperis is
now moot. Therefore, this Court adopts the first Proposed Findings and Recommendations
insofar as the first Proposed Findings and Recommendations recommend denying Mr.
Westerman’s motion to proceed in forma pauperis. The Court denies as moot Mr. Westerman’s
motion to proceed in forma pauperis.
As to the recommendation regarding Mr. Munnerlyn’s motion to proceed in forma
pauperis, the Court adopts the first Proposed Findings and Recommendations for the following
reasons. Federal Rule of Civil Procedure 20(a)(1) allows multiple persons to join in one action
as plaintiffs if “(A) they assert any right to relief . . . with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or
fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 20. Courts are divided
over whether prisoners may join in the filing of a single action under Rule 20 without
contravening the Prison Litigation Reform Act (“PLRA”) and its requirement that a prisoner
plaintiff pay the full amount of the filing fee when bringing a civil suit in forma pauperis.
Compare Hubbard v. Haley, 262 F.3d 1194 (11th Cir. 2001) (holding that each prisoner must
proceed in a separate action and be responsible for payment of the full district court filing fee),
with Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004) (allowing permissive joinder of prisoner
plaintiffs as long as each joined prisoner pays the full individual filing fee), and Hagan v.
Rogers, 570 F.3d 146 (3rd Cir. 2009) (same).
Based on this Court’s review, the Eighth Circuit Court of Appeals has not ruled on this
precise issue. After a de novo review of the record, and assuming without deciding that prisoners
may join in the filing of a single action under Rule 20 without contravening the PLRA, the Court

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adopts Judge Kearney’s finding that Mr. Bargo’s and Mr. Munnerlyn’s claims and personal
circumstances here are sufficiently separate and distinct from one another and arise from a
separate series of occurrences such that Rule 20 does not permit joinder. Therefore, the Court
adopts Judge Kearney’s recommendation that Mr. Munnerlyn’s claims should be dismissed
without prejudice from this action and that he is required to file his own separate lawsuit
concerning any claims against defendants. For these reasons, this Court adopts Judge Kearney’s
first Proposed Findings and Recommendations (Dkt. No. 7).
Plaintiff Mr. Bargo filed an amended complaint, which included claims also brought on
behalf of Mr. Munnerlyn (Dkt. No. 22).

For the reasons explained in this Order, Mr.

Munnerlyn’s claims should be dismissed without prejudice from this action, and he is required to
file his own separate lawsuit concerning any claims against defendants. This determination is
consistent with Judge Kearney’s second Proposed Findings and Recommendations (Dkt. No. 24).
After a review of the second Proposed Findings and Recommendations, Mr. Bargo’s
objections, and a de novo review of the record in this case, the Court adopts the second Proposed
Findings and Recommendations in their entirety (Dkt. No. 24).
Therefore, the Court orders that:
1. the motion to proceed in forma pauperis filed by co-plaintiff Marion Westerman is
denied without prejudice as moot and that Mr. Westerman be dismissed without
prejudice as a plaintiff in this action (Dkt. No. 4);
2. co-plaintiff Robert Munnerlyn’s motion to proceed in forma pauperis be denied
without prejudice and that Mr. Munnerlyn be dismissed without prejudice as a
plaintiff in this action;
3. defendants Hobbs, Watson, Naylor, Roland, Evans, and Iko be dismissed without
prejudice as defendants in this action;
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4. plaintiff Mr. Bargo’s voice stress analysis claims be dismissed without prejudice for
failure to state a claim upon which relief may be granted; and
5. plaintiff Mr. Bargo’s cruel and unusual punishment and deliberate indifference claims
be dismissed without prejudice.
SO ORDERED this 8th day of April, 2015.

_______________________________
Kristine G. Baker
United States District Judge

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