Session v. Clemings et al

Filing 24

ORDER Directing Plaintiff to File Second Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 11/21/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02406-GPG
FRANKY L. SESSION,
Plaintiff,
v.
DEPUTY SHERIFF CLEMINGS,
DEPUTY SHERIFF ANDREWS,
DENVER SHERIFF CAPTAIN ROMERO,
DENVER SHERIFF SERGEANT JORDON,
DEPUTY SHERIFF AREANO,
DEPUTY SHERIFF CASSITY,
DENVER MAIL ROOM TECH (UNKNOWN), and
DENVER SHERIFF (UNKOWN), All in Their Individual and Official Capacities,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff Franky L. Session is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the Bent County Correctional Facility in Las
Animas, Colorado. Plaintiff initiated this action by filing pro se a Prisoner Complaint
pursuant to 42 U.S.C. § 1983 that challenges the conditions of his confinement, while
he was detained att the Denver County Jail in Denver, Colorado, and an Affidavit for
Leave to Proceed Pursuant to 28 U.S.C. § 1915. The Court has granted Plaintiff’s
§ 1915 Motion.
On September 8, 2014, Magistrate Judge Boyd N. Boland directed Plaintiff to
amend the Complaint. Specifically, Plaintiff was told to comply with Fed. R. Civ. P. 8
and to state his claims in a short and concise statement. Magistrate Judge Boland also
told Plaintiff to assert personal participation by each named defendant and to state
what each defendant did to him, when they committed the action, how the action

harmed him, and what specific right was violated. Finally, Plaintiff was told that he
cannot maintain claims against prison officials or administrators on the basis that they
denied his grievances. On October 7, 2014, Plaintiff filed an Amended Prisoner
Complaint.
The Court must construe Plaintiff’s Amended Complaint liberally because he is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court cannot act
as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons
stated below, Plaintiff will be directed to file a Second Amended Complaint.
Plaintiff sets forth the following claims:
Claims 1 and 2. Defendant Deputy Sheriff Clemings removed Plaintiff
from population to lock-down on March 24, 2013, without a hearing, in
violation of Plaintiff’s Eighth and Fourteenth Amendment rights;
Claims 3 and 4. Defendant Deputy Sheriff Andrews performed an
unreasonable strip search on March 24, 2013, in violation of Plaintiff’s
Fourth and Fourteenth Amendment rights;
Claims 5 and 6. Defendant Captain Romero placed Plaintiff in lock-down
as punishment for Plaintiff’s state charges and then failed to perform any
administrative review to determine if Plaintiff’s continued placement in
lock-down was necessary from March 24, 2013, to December 18, 2013, in
violation of Plaintiff’s Eighth and Fourteenth Amendment rights;
Claims 7 and 8. Defendant Sergeant Jordon denied Plaintiff’s return to
population each week from March 24, 2013, to December 18, 2013, in
violation of Plaintiff’s Eighth and Fourteenth Amendment rights;
Claims 9 and 10. Defendant Sheriff Areano destroyed Plaintiff’s legal
documents or court filings from September 5, 2013, to November 12,
2013, in violation of Plaintiff’s First and Fourteenth Amendment rights;
Claims 11 and 12. Defendant Sheriff Cassity refused to make legal
copies for Plaintiff and denied Plaintiff his legal printouts on June 24-25
and 29, 2013, in violation of Plaintiff’s First and Fourteenth Amendment
rights;

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Claims 13 and 14. Defendant Unknown Mailroom Tech failed to open
Plaintiff’s legal mail in front of Plaintiff on June 25, 2014, and July 7, 2014,
in violation of Plaintiff’s First and Fourteenth Amendment rights; and
Claim 15. Defendant Denver Sheriff placed Plaintiff in a cell from June
25, 2013, to July 31, 2014, that had “red stuff running down wall,” halfeaten food, “stuff with hair on it,” dried fruit, and a bad odor in violation of
Plaintiff’s Eighth Amendment rights.
The Amended Complaint improperly combines a number of separate and
unrelated claims against different defendants. In claims 1 through 8, Plaintiff
challenges the incidents that pertain to his placement in lock down status without due
process. However, Claims 9-10, 11-12, 13-14, and 15 challenge four separate
incidents that took place either on one or two occasions or over a period of time and
involve different individuals.
Pursuant to Rule 18(a) of the Federal Rules of Civil Procedure, “[a] party
asserting a claim . . . may join, as independent or alternative claims, as many claims as
it has against an opposing party.” However, the issue of whether multiple defendants
may be joined in a single action is governed by Rule 20(a)(2) of the Federal Rules of
Civil Procedure, which provides:
(2) Defendants. Persons . . . may be joined in one action as
defendants if:
(A) any right to relief is asserted against them
jointly, severally, or in the alternative 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
defendants will arise in the action.
Fed. R. Civ. P. 20(a).
Requiring adherence in prisoner suits to the federal rules regarding joinder of
parties and claims prevents “the sort of morass [a multiple claim, multiple defendant]
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suit produce[s].” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). “Misjoinder of
parties is not a ground for dismissing an action.” Fed. R. Civ. P. 21. Instead, “ ‘[t]o
remedy misjoinder, . . . the court has two remedial options: (1) misjoined parties may
be dropped on such terms as are just; or (2) any claims against misjoined parties may
be severed and proceeded with separately.’ ” Nasious v. City and County of Denver,
415 F. App’x 877, 881 (10th Cir. 2011) (quoting DirecTV, Inc., v. Leto, 467 F.3d 842,
845 (3d Cir. 2006)). Nonetheless, the Court will refrain from dropping or severing
parties at this time before Plaintiff has the opportunity to submit a Second Amended
Complaint that complies with the joinder requirements of the Federal Rules of Civil
Procedure. Accordingly, it is
ORDERED that within thirty days from the date of this Order, Plaintiff shall
file a Second Amended Complaint that complies with this Order. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved Prisoner
Complaint form (with the assistance of his case manager or the facility’s legal
assistant), along with the applicable instructions, at www.cod.uscourts.gov, to be used
in filing the Second Amended Complaint. It is
FURTHER ORDERED that if Plaintiff fails to file a Second Amended Complaint
that complies with this Order, within the time allowed, the Court will proceed with one of
the remedial options to remedy the misjoinder.
DATED November 21, 2014, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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