Winter v. Mills et al

Filing 56

MEMORANDUM ORDER CONSOLIDATING CIVIL ACTION NOS. 16-890-LPS AND 18-351-LPS FOR ALL PURPOSES. ALL FUTURE FILINGS SHALL BE MADE IN LEAD CASE NO. 16-890-LPS ONLY. ORDER denying (31 in 1:16-cv-00890-LPS) (11 in 1:18-cv-00351-LPS) MOTION to Lower Fee o r Stay, denying as moot (53 in 1:16-cv-00890-LPS) MOTION to add defendants, denying(55 in 1:16-cv-00890-LPS, 17 in 1:18-cv-00351-LPS) MOTION of Defamation of Character by Defendants, denying (29 in 1:16-cv-00890-LPS) (4 in 1:18-cv-00351-LPS) MO TION to Appoint Counsel, denying as moot(26 in 1:16-cv-00890-LPS) MOTION for Extension of Time to File, denying (30 in 1:16-cv-00890-LPS) MOTION to Consolidate Cases (16-890 with 17-1432). ORDER, Setting Deadlines: ( Amended Complaint due by 6/15 /2018.) Plaintiff is placed on notice that her failure to timely file an amended complaint will result in dismissal of this consolidated case. Plaintiff is further placed on notice that only religious diet and grievance claims may be raised in the amended complaint and the Court will strike any other newly-added claims. Signed by Judge Leonard P. Stark on 5/16/2018. (nmf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
HERMIONE KELLY IVY WINTER,
formerly known as David Allen Allemandi,
,Plaintiff,

v.

: Civ. No. 16-890-LPS

MONICA MILLS, et al.,
Defendants .
. HERMIONE KELLY IVY WINTER,
Plaintiff,

v.

: Civ. No. 18-351-LPS

CHRISTOPHER SENATO, et al,
Defendants.

MEMORANDUM ORDER
At Wilmington this 16th day of May, 2018,
Plaintiff Hermine Kelly Ivy Winter ("Plaintiff'') has filed numerous lawsuits. Many contain
identical or similar allegations against the same defendants. The cases include Civ. Nos. 16-890LPS, 17-1322-LPS, 17-1432-LPS, and 18-351-LPS. In the filings, Plaintiff raises religious diet
claims, medical needs claims that include hormone replacement therapy, failure to protect claims,
and grievance claims, all in alleged violation of her civil rights pursuant to 42 U.S.C. § 1983. In all
cases, Plaintiff proceeds pro se and has been granted in farma pa1peris status. The Court has reviewed
the complaints in these cases and will consolidate cases and issues to more effectively manage
Plaintiffs actions.

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The complaints in the two-above captioned cases involve the same or similar allegations
against many of the same defendants, and more particularly, religious diet and grievance claims. (See
Civ. No. 16-890-LPS at D.I. 27; Civ. No. 18-351-LPS at D.I. 1)
Federal Rule of Civil Procedure 42 provides for consolidation "[w]hen actions involv[e] a
common question of law or fact ... to avoid unnecessary costs or delay." Fed. R. Civ. P. 42(a).
"District courts have the inherent authority to order consolidation sua sponte." Plimpton v. Cooper,
141 F. Supp. 2d 573, 575 (W.D. N.C. 2001) (citing Pickle v. Char Lee Seafood, Inc., 174 F.3d 444 (4th
Cir. 1999)). Both complaints concern common questions of law and fact with regard to Plaintiffs
religious diet and grievance claims. All other remaining claims raised will be dismissed as they are
raised in other actions filed by Plaintiff.
IT IS THEREFORE ORDERED that:
1.

Civil Action Nos. 16-890-LPS and 18-351-LPS are CONSOLIDATED for all

purposes.
2.

The caption of the Consolidated Action is as follows:

HERMIONE KELLY IVY WINTER,
Plaintiff,

: CONSOLIDATED
: Civ. No. 16-890-LPS

v.
MONICA MILLS, et al.,
Defendants.

3.

The amended complaint filed in Civil Action No. 16-890-LPS at D.I. 27 and the

complaint filed in Civil Action No. 18-351-LPS at D.I. 1, together, will stand as the complaint in this

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Consolidated Action insofar as they raise religious diet and grievance claims. All other remaining
claims raised are DISMISSED as they are raised in other actions filed by Plaintiff.
4.

All documents previously filed to date in the cases consolidated herein are deemed

filed and are part of the record in the Consolidated Action.
5.

Hereafter, court pleadings and documents shall be filed only in Consolidated Civil

Action No. 16-890-LPS. The Court will not accept pleadings filed in Civil Action No. 18-351-LPS.
6.

On or before June 15, 2018, Plaintiff shall file an amended complaint in this

consolidated case that contains in one pleading all religious diet and grievance claims and all
Defendants against whom the claims are raised. Upon its filing, the amended complaint will be
screened pursuant to 28 U.S.C. § 1915(e)(2) and§ 1915A(A). Plaintiff is placed on notice that

her failure to timely file an amended complaint will result in dismissal of this consolidated
case. Plaintiff is further placed on notice that only religious diet and grievance claims may
be raised in the amended complaint and the Court will strike any other newly-added claims.
IT IS FURTHER ORDERED that:
1.

Plaintiff's motion for an extension of time to file an amended complaint (Civ. No.

16-890-LPS at D.I. 26) is DENIED as moot.
2.

Plaintiff's requests for counsel (Civ. No. 16-890-LPS at D.I. 29 and Civ. No. 18-351-

LPS at D.I. 4) are DENIED without prejudice to renew. Plaintiff seeks counsel on the grounds
that she does not have the ability to present her own case, she is unskilled in the law and the issues
are complex, the case may turn on credibility determinations, expert witnesses will be necessary, she
cannot attain and afford counsel on her own behalf, and she has mental incompetency and a
physical disability.

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3.

A pro se litigant proceeding in farma pauperis has no constitutional or statutory right to

representation by cowisel. See Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir. 2011); Tabron v. Grace,
6 F.3d 147, 153 (3d Cir. 1993). However, representation by cowisel may be appropriate wider
certain circumstances, after a finding that a plaintiff's claim has arguable merit in fact and law. See

Tabron, 6 F.3d at 155; see also Mallard v. United States Dist. Courtfar the S. Dist.

ofIowa, 490 U.S. 296

(1989)(§ 191?(d) (now§ 1915(e)(1)) does not authorize federal court to require unwilling attorney to
represent indigent civil litigant, operative word in statute being "request").
4.

After passing this threshold inquiry, the court should consider a number of factors

when assessing a request for cowisel. Factors to be considered by a court in deciding whether to
request a lawyer to represent an indigent plaintiff include: (1) the merits of the plaintiff's claim;
(2) the plaintiff's ability to present his or her case considering his or her education, literacy,
experience, and the restraints placed upon him or her by incarceration; (3) the complexity of the
legal issues; (4) the degree to which factual investigation is required and the plaintiff's ability to
pursue such investigation; (5) the plaintiff's capacity to retain counsel on his or her own behalf; and
(6) the degree to which the case turns on credibility determinations or expert testimony. See

Montgomery v. Pinchak, 294 F.3d 492, 498-99 (3d Cir. 2002); Tabron, 6 F.3d at 155-56. The list is not
exhaustive, nor is any one factor determinative. Tabron, 6 F.3d at 157.
5.

Here, Plaintiff makes bald makes bald allegations of mental illness, but has failed to

submit any verifiable evidence of incompetence to this Court. Thus, in accordance with Powell v.

Symons, 680 F.3d 301 (3d Cir. 2012), this Court has no duty to conduct a s11a sponte determination of
competency wider Rule 17(c)(2).
6.

In addition, assuming solely for the purpose of deciding this motion, that Plaintiff's

claims have merit in fact and law, several of the Tabron factors militate against granting her request
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for counsel. To date, Plaintiff has shown the ability in to represent herself in this case. Also,
reviewing Plaintiff's claims, the Court concludes that they are not so factually or legally complex that
requesting an attorney is warranted. In light of the foregoing, the Court will deny without prejudice
to renew Plaintiff's request for counsel. Should the need for counsel arise later, one can be sought
at that time.
7.

Plaintiff's motion to consolidate cases (Civ. No. 16-890-LPS at D.I. 30) is DENIED.

Plaintiff seeks to consolidate Civ. No. 16-890-LPS with Civ. No. 17-1432-LPS, not with Civ. No.
18-351 -LP.S.
8.

Plaintiff's motion to lower the fee percentage or stay the cases (Civ. No. 16-890-LPS

at D.I. 31) and motion for a fee reduction (Civ. No. 18-351-LPS at D .I. 11) are DENIE D . Plaintiff
filed these cases and she is required by 28 U .S.C. § 1914 and§ 1915 to pay the filing fee owed as set
forth in the statute's calculation of filing fee payments.
9.

Plaintiff's motion to add defendants, construed as a motion to amend (Civ. No. 16-

89-LPS at D .I. 53), is DENIED as moot. As set forth above, Plaintiff has been given leave to file
an amended complaint in this consolidated case.
10.

Plaintiff's motions for " deprivmation of character" (Civ. No. 16-890-LPS at D.I. 55

and Civ. No. 18-351-LPS at D.I. 17) are DENIE D . Plaintiff complains that she receives no
medical treatment despite her diagnosis and grievances submitted. She takes exception to the denial
of her grievance. An inmate does not have a "free-standing constitutional right to an effective
grievance process." Woods v. Firs/ Con: Med., Inc., 446 F. App'x 400, 403 (3d Cir. ~ug. 18, 201 1)
(citing Fkck v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)).

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I-IONORABI!.E LE ONARD P. S
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UNITED STATES D ISTRICT JUDGE
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