Birrell, et al., v. Fox, et al.,

Filing 83

ORDER signed by Magistrate Judge Carolyn K. Delaney on 6/13/2023 ORDERING plaintiff's Alford's claims are severed from plaintiff Deegan's. The Clerk shall open a new action and file a copy of this order and plaintiff Deegan's 82 second amended complaint in that action. The new action shall be assigned to the district court judge and magistrate judge assigned to this case. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

DAVID WESLEY BIRRELL, et al.,

12
13
14
15

No. 2:16-cv-1818 DJC CKD P

Plaintiffs,
v.

ORDER

ROBERT W. FOX, et al.,
Defendants.

16
17

On August 30, 2017, the court screened plaintiffs’ amended complaint as the court is

18

required to do under 28 U.S.C. § 1915A(a). The court found that plaintiffs could proceed on a

19

claim for injunctive relief under the Eighth Amendment, for exposure to harmful substances

20

including asbestos, against defendant Fox in his official capacity as the Warden of the California

21

Medical Facility. Defendant Fox filed his answer on September 20, 2017.

22

At that point several matters contributed to extensive delay in this case, most notably the

23

withdrawal of counsel for plaintiffs and the issuance of a lengthy stay to permit plaintiffs to retain

24

substitute counsel. Plaintiffs never found substitute counsel and most of the plaintiffs have been

25

dismissed for various reasons including indifference and a desire not to proceed further.

26

There are two plaintiffs that remain, however: plaintiff Deegan, who is still housed at the

27

California Medical facility; and plaintiff Alford who now resides at the California Health Care

28

Facility. Deegan was granted leave to file a second amended complaint and the second amended
1

1
2

complaint is before the court for screening. Alford proceeds on the first amended complaint.
For several reasons, including that plaintiffs are now proceeding on different pleadings,

3

the court has determined that each plaintiff should proceed separately on his own claims. The

4

Federal Rules of Civil Procedure provide “[p]arties may be dropped or added by order of the

5

court on motion of any party or of its own initiative at any stage of the action and on such terms

6

as are just. Any claim against a party may be severed and proceeded with separately.” Fed. R.

7

Civ. P. 21. Courts have broad discretion regarding severance. See Davis v. Mason County, 927

8

F.2d 1473, 1479 (9th Cir. 1991).

9

Accordingly, IT IS HEREBY ORDERED that:

10

1. Plaintiff Alford’s claims are severed from plaintiff Deegan’s. The Clerk of the Court is

11

directed to open a new action and file a copy of this order and plaintiff Deegan’s second amended

12

complaint in that action.

13

2. The new action shall be assigned to the district court judge and magistrate judge

14

assigned to this case.

15

Dated: June 13, 2023
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

16
17
18
19
20
21

1
birr1818.sev

22
23
24
25
26
27
28
2