Johnson v. Kruse et al

Filing 31

IT IS ORDERED that Defendants' Motion to Sever Claims (Doc. 26) is GRANTED IN PART insofar as the claims against Bell, Miles, and White are SEVERED into 3 new cases. IT IS FURTHER ORDERED that the stay imposed in this case on January 16, 201 8 (Doc. 28) is lifted. Defendants shall file their Answers or otherwise plead in this case, or in their respective severed cases, within 30 days from the date of this Order. The Clerk is DIRECTED to mail a copy of this Order to Plaintiff at the FCI- Schuylkill, P.O. Box 759, Minersville, PA 17954, as a courtesy. Signed by Judge J. Phil Gilbert on 2/13/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTHONY JOHNSON, # 38651-044,
Plaintiff,
vs.
DOUGLAS KRUSE,
ZELLDA BELL,
JAMES CROSS,
OFFICER MILES,
S. WHITE,
and Mr. ALBERT,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 17-cv-237-JPG-RGD

MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter is before the Court for consideration of Defendants’ Motion to Sever Claims
(Doc. 26). Defendants argue that not all of them are properly joined in the same lawsuit in light
of Federal Rule of Civil Procedure 20(a)(2), which provides that defendants may be joined in the
same action if (1) the plaintiff asserts at least one claim against each defendant “with respect to
or arising out of the same transaction, occurrence, or series of transactions or occurrences;” FED.
R. CIV. P. 20(a)(2)(A), and (2) “any question of law or fact common to all defendants will arise
in the action.” FED. R. CIV. P. 20(a)(2)(B).
Defendants filed the motion and mailed a copy to Plaintiff at her address of record at FCI
Beckley on December 28, 2017. (Doc. 26, p. 6). More than 14 days have elapsed since that
date, and Plaintiff has not submitted a response. See SDIL-LR 7.1(g). The Court has some
concern over whether Plaintiff in fact received her copy of the motion, in light of the return of
the Court’s correspondence mailed to her at the FCI-Beckley address on January 18, 2018, as
1

undeliverable. (Doc. 29).1 The online inmate locator records2 of the Bureau of Prisons indicate
that Plaintiff has been transferred to another prison, but as of the date of this order, Plaintiff has
not yet submitted a notice of change of address to the Court. Nonetheless, this motion is ripe for
ruling, and shall be granted in part.
Defendants’ motion focuses on Counts 5 and 6 in this action, which the Court described
in the merits review order as follows:
Count 5: Plaintiff was targeted for discriminatory cell searches and confiscation
of her undergarments because of her transgender status, in violation of her right to
equal protection, by Bell (in October 2012), Cross and Albert (in March 2014),
White (in October 2014), and Miles (in January 2016).
Count 6: The confiscation of Plaintiff’s undergarments by Bell (in October
2012), Cross and Albert (in March 2014), White (in October 2014), and Miles (in
January 2016), constituted deliberate indifference to Plaintiff’s serious
medical/mental health need for those items to address her gender dysphoria.
(Doc. 11, p. 10). Defendants argue that because of the time that elapsed between the various cell
searches, and the fact that each search was conducted by a different individual Defendant (or pair
of Defendants in the case of the March 2014 search), the searches should not be considered part
of the same “series of transactions or occurrences” within the meaning of Federal Rule of Civil
Procedure 20(a)(2). If each cell search is deemed to be a distinct occurrence, then the claims that
arose from each search should proceed against the respective Defendant(s) in separate lawsuits.
There is no hard and fast rule to determine whether a set of events is sufficiently logically
connected to comprise a “series” of transactions which would allow the claims against multiple
Defendants to be properly joined in the same action. See Wright, Miller, & Kane, 7 Fed. Prac. &
Proc. Civ. § 1653 (3d ed.). Temporal proximity of the events is a factor, but is not the only

1

The returned envelope contained the Court’s January 16, 2018, order (Doc. 28) granting Defendants’
motion to stay this action until the motion to sever is ruled upon, and to postpone the deadline for
Defendants to file their answer to 30 days following the date of the order disposing of the motion to sever.
2
Https://www.bop.gov/inmateloc/ (last visited February 12, 2018).

2

consideration. The Court does not adopt Defendants’ position that the cell searches were entirely
unrelated events.

However, upon reconsideration, neither is it clear that the cell searches

amounted to a logically related pattern of events sufficient to bring the claims against the various
Defendants together under the provisions of Rule 20(a)(2). The Court shall therefore exercise its
discretion to sever Plaintiff’s claims against some of the Defendants into separate actions,
pursuant to Rule 20(a)(2) and Rule 21.
Defendants suggest that this action should be severed into 5 suits, splitting up the claims
in Counts 5 and 6 according to the dates when the cell searches were conducted: one case
against Cross and Kruse (who are also named together in Counts 1 and 2), one against Bell, one
against Miles, one against White, and one against Albert. (See Doc. 26, p. 5). However, this
proposal overlooks the fact that Albert participated with Cross in the March 2014 cell search that
gave rise to part of the claims in Counts 5 and 6.3 As such, Plaintiff’s claims against Cross and
Albert arising from the March 2014 search are properly joined in the same action, as are the
claims in Counts 1 and 2 against Cross and Kruse.
The claims against Kruse, Cross, and Albert shall therefore remain in this case. The
claims against Bell, Miles, and White shall be severed into 3 new cases. Each of the cases shall
contain a portion of Counts 5 and 6, corresponding to the dates on which each Defendant
searched Plaintiff’s cell. Plaintiff will be responsible for an additional $350.00 filing fee in
each new case.
IT IS THEREFORE ORDERED that Defendants’ Motion to Sever Claims (Doc. 26) is
GRANTED IN PART insofar as the claims against Bell, Miles, and White are SEVERED into
3 new cases as directed below. The motion is DENIED IN PART in that the claims against
3

Defendant’s table on page 3 of the motion, which purports to list the Defendants and the counts in which
they are named, omits the fact that claims are pending against Cross in Count 6, and against Miles, White,
and Albert in Count 5.

3

Albert shall not be severed, but shall remain in the instant action.
IT IS FURTHER ORDERED that the claims remaining in this action consist of:
Count 1: Dr. Kruse and Warden Cross were deliberately indifferent to Plaintiff’s
serious medical/mental health needs, in violation of the Eighth Amendment, by
discontinuing Plaintiff’s prescription medication, refusing to provide alternative
medication, denying a lower-bunk permit, and denying hair-removal products,
starting in August 2012;
Count 2: Dr. Kruse and Warden Cross violated Plaintiff’s Fifth Amendment
right to equal protection by discriminating against her based on her transgender
status, by denying her medical care/accommodations as described in Count 1;
Count 3: Albert discriminated against Plaintiff based on her transgender status
when he denied her commissary request for hair-removal products;
Count 5: Plaintiff was targeted for a discriminatory cell search and confiscation
of her undergarments because of her transgender status, in violation of her right to
equal protection, by Cross and Albert in March 2014;
Count 6: The confiscation of Plaintiff’s undergarments by Cross and Albert in
March 2014 constituted deliberate indifference to Plaintiff’s serious
medical/mental health need for those items to address her gender dysphoria;
Count 7: Cross confiscated (or directed others to confiscate) Plaintiff’s
undergarments during the March 2014 cell search in retaliation for Plaintiff’s
administrative complaints, in violation of the First Amendment.
This case shall now be captioned as: ANTHONY DEWAYNE JOHNSON, Plaintiff,
vs. DOUGLAS KRUSE, JAMES CROSS, and MR. ALBERT, Defendants.
IT IS FURTHER ORDERED that the claims against Bell, Miles, and White shall be
severed into 3 new cases as follows:
First Severed Case (Zellda Bell):
Count 5: Plaintiff was targeted for a discriminatory cell search and confiscation
of her undergarments because of her transgender status, in violation of her right to
equal protection, by Bell in October 2012;
Count 6: The confiscation of Plaintiff’s undergarments by Bell in October 2012,
constituted deliberate indifference to Plaintiff’s serious medical/mental health
need for those items to address her gender dysphoria;
4

Count 8: Bell violated Plaintiff’s right to equal protection by refusing to take
protective or remedial action after Plaintiff reported a sexual assault on her in
October 2012, because of Plaintiff’s transgender status;
Count 10: Bell retaliated against Plaintiff for filing complaints against Bell, by
revoking Plaintiff’s privileges (including phone, e-mail, and visits) after Plaintiff
was discharged from the SHU and placed in unit H2-A;
Count 11: Bell discriminated against Plaintiff based on her transgender status, by
revoking Plaintiff’s privileges (including phone, e-mail, and visits) after Plaintiff
was discharged from the SHU and placed in unit H2-A.

Second Severed Case (S. White):
Count 5: Plaintiff was targeted for a discriminatory cell search and confiscation
of her undergarments because of her transgender status, in violation of her right to
equal protection, by White in October 2014;
Count 6: The confiscation of Plaintiff’s undergarments by White in October
2014 constituted deliberate indifference to Plaintiff’s serious medical/mental
health need for those items to address her gender dysphoria.

Third Severed Case (Officer Miles):
Count 5: Plaintiff was targeted for a discriminatory cell search and confiscation
of her undergarments because of her transgender status, in violation of her right to
equal protection, by Miles in January 2016;
Count 6: The confiscation of Plaintiff’s undergarments by Miles in January 2016
constituted deliberate indifference to Plaintiff’s serious medical/mental health
need for those items to address her gender dysphoria.

In each new case, the Clerk is DIRECTED to file the following documents:
(1)
(2)
(3)
(4)

This Memorandum and Order
The Memorandum and Order at Doc. 11
The First Amended Complaint and exhibits (Doc. 9)
Plaintiff’s motion to proceed in forma pauperis (Doc. 2)

IT IS FURTHER ORDERED that Defendants BELL, MILES, and WHITE are
TERMINATED from this action with prejudice.
5

Because each of the claims listed above has survived the Court’s merits review pursuant
to 28 U.S.C.§ 1915A (Doc. 11), an order may be entered referring each newly severed case to a
United States Magistrate Judge for further pretrial proceedings as soon as the new cases are
opened, given case numbers, and assigned to a judge.
IT IS FURTHER ORDERED that the stay imposed in this case on January 16, 2018
(Doc. 28) is lifted. Defendants shall file their Answers or otherwise plead in this case, or in their
respective severed cases, within 30 days from the date of this Order.
The Clerk is DIRECTED to mail a copy of this Order to Plaintiff at the FCI-Schuylkill,
P.O. Box 759, Minersville, PA 17954, as a courtesy. Plaintiff is REMINDED that it is her
responsibility to notify the Clerk of Court and each opposing party, in writing, of all changes of
address within 7 days of the change. Failure to do so may result in dismissal of this action for
want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: February 13, 2018

s/J. Phil Gilbert
United States District Judge

6