O'Neal v. Peterson et al

Filing 19

ORDER signed by Magistrate Judge Kendall J. Newman on 4/3/14 ORDERING that 16 Motion to Dismiss is GRANTED; plaintiff is granted thirty days to file a second amended complaint; defendants' response to the second amended complaint is due 21 days thereafter. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GLENN DAVID O‟NEAL,

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Plaintiff,

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v.

No. 2: 13-cv-1054 KJN P

ORDER

J. PETERSON, et al.,

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Defendants.

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Introduction
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is defendants‟ motion to dismiss on the following

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grounds: 1) pursuant to Federal Rules of Civil Procedure 18(a) and 20 for asserting unrelated

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claims; 2) pursuant to Federal Rule of Civil Procedure 12(b) for failing to exhaust administrative

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remedies; and 3) pursuant to Federal Rule of Civil Procedure 12(b)(6) for failing to state a claim

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upon which relief may be granted.

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After carefully reviewing the record, the undersigned grants defendants‟ motion, in part,

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with leave to amend.

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Plaintiff‟s Claims

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This action is proceeding on the first amended complaint as to defendants Lee, Williams,
Peddicord, Chaplain Howard, Chaplain Peaman and Gamberg. (ECF No. 10.) The amended
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complaint contains three claims for relief.

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In claim one, plaintiff alleges that on August 15, 2012, he arrived at High Desert State

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Prison (“HDSP”) from the California Correctional Institution (“CCI”) with his religious diet card.

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Plaintiff alleges that the card allows plaintiff to receive a vegetarian/vegan religious diet

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throughout the California Department of Corrections (“CDCR”). Plaintiff alleges that after he

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arrived at HDSP, officials would not honor his religious diet card. HDSP prison officials told

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plaintiff that he would have to get a religious diet card from the HDSP chaplain. Plaintiff alleges

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that he made numerous requests to see the chaplains, i.e., defendants Howard and Peaman, but

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was not seen by a chaplain until October 23, 2012, i.e., two months after he arrived at HDSP.

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Plaintiff alleges that during that month, he was served food with meat, which he could not eat.

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Plaintiff alleges that he lost 50 pounds during this time.

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In claim two, plaintiff alleges that after he broke his ankle in June 2011, he was seen by

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orthopedist specialist Dr. Mehul on February 29, 2012. Dr. Mehul recommended that plaintiff

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receive bone stimulation treatment and tibiotalar effuction. When plaintiff arrived at HDSP on

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August 15, 2012, Dr. Pomazal recommended that plaintiff receive physical therapy. Plaintiff

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alleges that defendant Lee denied him physical therapy, crutches, a cane, follow-up treatment and

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x-rays by an orthopedic specialist despite plaintiff‟s pain and difficulty walking.

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In claim three, plaintiff alleges that on March 20, 2012, he was attached by his cellmate,

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inmate Finister, while housed at CCI. Plaintiff alleges that after he was transferred to HDSP, on

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October 24, 2012 he told defendants Williams, Peddicord and Gamberg about the attack by

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inmate Finister and expressed his safety concerns. Plaintiff alleges that defendants Williams,

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Peddicord and Gamberg disregarded plaintiff‟s safety needs when they housed plaintiff and

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Finister on the same yard. Plaintiff alleges that on February 21, 2013, inmate Finister attacked

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him a second time.

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Discussion
The undersigned first considers defendants‟ argument that plaintiff‟s claims are not

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properly joined.

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Unrelated claims against different 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).
Defendants argue that the claims raised in plaintiff‟s third amended complaint are not

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properly joined because they involve three separate and distinct events against different

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defendants. Defendants argue that there are no common questions of fact among plaintiff‟s three

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claims.

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The undersigned agrees that plaintiff‟s unrelated claims against different defendants are

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improperly joined. While plaintiff‟s claims all arose at HDSP, they involve different incidents

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and different defendants. Accordingly, defendants‟ motion to dismiss on this ground is granted

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with leave to amend. Plaintiff is directed to choose one of the claims raised in his amended

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complaint on which to proceed. Plaintiff is granted thirty days to file a second amended

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complaint raising only the one claim on which he chooses to proceed. Any amended complaint

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may not change the nature of this suit by alleging new, unrelated claims. George, 507 F.3d at 607

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(no “buckshot” complaints).
Because the undersigned finds that plaintiff‟s claims are not properly joined, there is no

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need to address the remaining arguments raised in defendants‟ motion to dismiss at this time.
Accordingly, IT IS HEREBY ORDERED that defendants‟ motion to dismiss (ECF No.

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16) is granted; plaintiff is granted thirty days to file a second amended complaint; defendants‟

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response to the second amended complaint is due twenty-one days thereafter.

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Dated: April 3, 2014

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On1054.mtd(2)

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