Penton v. Hubard et al

Filing 19

ORDER signed by Magistrate Judge Kendall J. Newman on 10/31/11 partially granting 14 Motion for Reconsideration. Upon reconsideration the 07/13/11 order dismissing the original complaint without prejudice 11 is affirmed. However, as noted above , plaintiff may file a new action if he wishes to pursue his challenge to the prison disciplinary; and the clerk of the court is directed to send plaintiff the forms for filing a civil rights complaint and an application to proceed in forma pauperis. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY PENTON,

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Plaintiff,

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No. 2:11-cv-0518 KJN P

vs.
S. HUBBARD, et al.,
Defendants.

ORDER
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Plaintiff consented to proceed before the undersigned for all purposes. See 28

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U.S.C. § 636(c). Plaintiff filed a request for reconsideration of this court’s order filed July 13,

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2011, which dismissed plaintiff’s complaint without prejudice, and granted plaintiff leave to file

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an amended complaint. Specifically, plaintiff claims he is not challenging the guilty finding that

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resulted in his placement in administrative segregation (“ad seg”), but alleges that his Eighth and

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Fourteenth Amendment rights were violated by the unlawfully-imposed, atypical and punitive

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placement in ad seg as a result of the prison disciplinary. Plaintiff contends that his prison

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disciplinary claim is similar to the claim raised in Muhammad v. Close, 540 U.S. 749 (2004),

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which was allowed to go forward.

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Pursuant to E.D. Local Rule 303(f), a magistrate judge’s orders shall be upheld
unless “clearly erroneous or contrary to law.” Id.
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On August 12, 2011, plaintiff filed an amended complaint raising only his claims

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concerning interference with plaintiff’s incoming and legal mail. These allegations concerning

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mail delivery are unrelated to the prison disciplinary that plaintiff also seeks to challenge.

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Plaintiff seeks leave to amend to add his challenge to the prison disciplinary

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which was not included in the amended complaint. Plaintiff may join multiple claims if they are

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all against a single defendant. Fed. R. Civ. P. 18(a). Unrelated claims against different

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defendants must be pursued in multiple lawsuits.

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The controlling principle appears in Fed. R. Civ. P. 18(a): “A
party asserting a claim . . . may join, [] as independent or as
alternate claims, as many claims . . . as the party has against an
opposing party.” Thus multiple claims against a single party are
fine, but Claim A against Defendant 1 should not be joined with
unrelated Claim B against Defendant 2. Unrelated claims against
different defendants belong in different suits, not only to prevent
the sort of morass [a multiple claim, multiple defendant] suit
produce[s], but also to ensure that prisoners pay the required filing
fees-for the Prison Litigation Reform Act limits to 3 the number of
frivolous suits or appeals that any prisoner may file without
prepayment of the required fees. 28 U.S.C. § 1915(g).

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George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Fed. R. Civ. P. 20(a)(2) (joinder of

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defendants not permitted unless both commonality and same transaction requirements are

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satisfied).

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Plaintiff’s amended complaint is 43 pages long and names seven defendants who

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are not the same defendants involved in the 2007 prison disciplinary. Allowing plaintiff to file a

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second amended complaint to include his challenge to the unrelated 2007 prison disciplinary

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would only complicate and unduly delay this action. Thus, further amendment in this action is

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not appropriate.

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Moreover, prisoners are required to exhaust administrative remedies prior to filing

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in federal court; exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v.

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Nussle, 534 U.S. 516, 524 (2002). A final decision from the Director’s level of review satisfies

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the exhaustion requirement under § 1997e(a). Barry v. Ratelle, 985 F.Supp. 1235, 1237-38 (S.D.
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Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5).

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In the original complaint, plaintiff checked the box noting that he had completed

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the grievance process. (Dkt. No. 1 at 2.) However, plaintiff attached a copy of the Inmate

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Appeals Tracking System, Level III, from the California Department of Corrections and

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Rehabilitation, for plaintiff’s inmate number. (Dkt. No. 1 at 45.) The list of appeals accepted to

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the third level include two for disciplinary issues; however, one is for appeal SAC-08-02341, and

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the other for SAC-09-01295, respectively filed in 2008 and 2009. (Dkt. No. 1 at 45.) Plaintiff’s

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original complaint states that plaintiff is challenging the August 29, 2007 disciplinary C-07-08-

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082. (Dkt. No. 1 at 11.) Because the disciplinaries referenced on the tracking form were

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challenged in 2008 and 2009, it does not appear that plaintiff exhausted the challenge to the 2007

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prison disciplinary to the third level of review.1

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Accordingly, plaintiff’s motion for reconsideration is partially granted. Upon

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reconsideration, the dismissal of the complaint without prejudice is affirmed. However, if

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plaintiff can allege facts demonstrating that this claim is similar to Muhammad, 540 U.S. at 749,

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and exhausted his administrative remedies as to this claim, plaintiff may file a new civil rights

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action challenging the prison disciplinary.

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Therefore, IT IS HEREBY ORDERED that:

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1. Plaintiff’s July 29, 2011 motion for reconsideration (dkt. no. 14) is partially

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granted;

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2. Upon reconsideration, the July 13, 2011 order dismissing the original

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complaint without prejudice (dkt. no. 11), is affirmed. However, as noted above, plaintiff may

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file a new action if he wishes to pursue his challenge to the prison disciplinary; and

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In 2007, a “staff complaint” was appealed to the third level, SAC-07-01905, but it is
unclear whether that appeal included a challenge to the 2007 prison disciplinary.
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3. The Clerk of the Court is directed to send plaintiff the forms for filing a civil

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rights complaint and an application to proceed in forma pauperis.

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DATED: October 31, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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pent0518.850

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