Womack v. Windsor, et al

Filing 38

ORDER signed by Magistrate Judge Kendall J. Newman on 6/10/2016 ORDERING plaintiff's 35 motion for reconsideration is CONSTRUED as a renewed motion to amend; plaintiff's renewed motion to amend is DENIED without prejudice; and the Clerk shall send plaintiff a form for filing a civil rights action. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RODNEY JEROME WOMACK,

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Plaintiff,

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No. 2:15-cv-0533 KJN P

v.

ORDER

J. WINDSOR, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding pro se, with this civil rights action seeking relief

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pursuant to 42 U.S.C. § 1983. The instant action proceeds on claims arising in 2014 and early

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2015 that defendants Dr. Windsor, Dr. Lankford, Dr. Lee and T. Mahoney were deliberately

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indifferent to plaintiff’s serious medical needs in violation of the Eighth Amendment, specifically

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in connection with plaintiff’s pain management, based on an alleged policy at High Desert State

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Prison, as well as the delay in receiving a second surgery, denovo cartilage implantation, solely as

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to defendants Dr. Lankford and Dr. Lee.1

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On May 18, 2016, plaintiff filed a motion for reconsideration of the court’s order denying,

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without prejudice, his motion for leave to amend the complaint. Plaintiff’s motion is construed as

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a renewed motion to amend. Plaintiff’s prior motion for leave to amend was denied because

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Although plaintiff included Dr. Mahoney in this second claim, Dr. Mahoney’s motion to
dismiss such claim was granted. (ECF No. 26.)
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plaintiff did not provide a proposed amended complaint for review. In the instant request,

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plaintiff claims that he provides the proposed amended complaint. However, no proposed

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pleading was provided. (ECF Nos. 35, 36.)

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In the meantime, defendants filed an opposition. Defendants argue that plaintiff seeks to

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amend to add claims and defendants wholly unrelated to the circumstances addressed above.

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Reviewing plaintiff’s earlier motion to amend, defendants note that plaintiff intends to add a

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deliberate indifference claim against Nurse Garcia stemming from a September 2015 denial of

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morphine, a claim that an unidentified nurse cancelled his morphine prescription in favor of

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Tylenol 3, and claims against unidentified medical staff that they refused to assist or provide him

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with ankle bandages and failed to transport him to medical appointments at U.C. Davis on four

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occasions. (ECF No. 37 at 2-3, citing ECF No. 33 at 2, 3-4.) Defendants contend that plaintiff

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should not be allowed to assert such new and unrelated claims based on incidents that took place

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months after the incidents at issue here.

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Defendants also note that plaintiff has now had the requested second surgery and does not

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allege mistreatment by any of the initial defendants in the claims raised in his prior motion to

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amend. Because plaintiff’s proposed new claims are distinctly different from the claims at issue

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herein, defendants argue that plaintiff must raise such unrelated claims in a new and separate

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lawsuit. (ECF No. 37 at 5.)

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Plaintiff did not file a reply.

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Despite his reference to a proposed amended complaint, plaintiff’s motion to amend was

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not accompanied by a proposed amended complaint. The earlier motion to amend, relied on by

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defendants in their opposition, was denied on May 10, 2016. Because plaintiff has not provided

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the proposed amended complaint, the court is again unable to properly evaluate plaintiff’s

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proposed new claims.

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That said, plaintiff is cautioned that he may not pursue new, unrelated claims against new

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defendants in this action. Plaintiff may join multiple claims if they are all against a single

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defendant. Fed. R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate

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transactions or occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P.

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10(b). Unrelated claims against different defendants must be pursued in multiple lawsuits.
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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If plaintiff intends to pursue the claims as characterized in his earlier motion to amend

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(ECF No. 33), he must file them in a new civil rights action. If plaintiff again files a motion to

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amend to include such claims, the motion to amend will be denied because the claims as

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articulated therein are not related to the instant claims and attempt to add new defendants who are

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not named in this action.

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Moreover, as noted by defendants, plaintiff must have fully exhausted his administrative

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remedies as to each new claim before he filed the instant action.2 In other words, if the new

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claims are based on incidents that occurred after March 5, 2015, they may not be included in this

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action because plaintiff could not have exhausted his administrative remedies as to such claims

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before he filed this action. Similarly, plaintiff must fully exhaust his administrative remedies as

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to each new unrelated claim prior to filing a new civil rights action.

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By the Prison Litigation Reform Act of 1995 (“PLRA”), Congress amended 42 U.S.C. § 1997e
to provide that “[n]o action shall be brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). The exhaustion requirement “applies to all inmate suits about prison life, whether
they involve general circumstances or particular episodes, and whether they allege excessive
force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
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As plaintiff was previously informed, his pleadings are subject to evaluation by this court

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pursuant to the in forma pauperis statute. See 28 U.S.C. § 1915A. Plaintiff has now been twice

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informed that if he sought leave to amend, his motion to amend must be accompanied by a

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proposed amended complaint. (ECF Nos. 31; 34.) Because plaintiff has again failed to submit a

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proposed amended complaint, the court is unable to evaluate it. Plaintiff is cautioned that he

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should not seek leave to amend again unless his proposed new claims comport with the above

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standards and are properly filed in a proposed amended complaint.

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Finally, plaintiff is warned that any effort to amend to raise unrelated claims against new
defendants may result in the imposition of sanctions based on his failure to comply with court
orders. Fed. R. Civ. P. 11.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for reconsideration (ECF No. 35) is construed as a renewed motion

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to amend;

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2. Plaintiff’s renewed motion to amend (ECF No. 35) is denied without prejudice; and

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3. The Clerk of the Court is directed to send plaintiff the form for filing a civil rights

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action by a prisoner.

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Dated: June 10, 2016

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/woma0533.10b2

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