ROBERSON v. TALBOT et al

Filing 11

ENTRY - The motion to amend the complaint, dkt. 8 , and motion for class certification, dkt. 9 , are DENIED. Plaintiff Paul Roberson has through January 29, 2018, in which to file an amended complaint containing only his claims and no other plaintiffs, or to inform the Court he will proceed with the November 6, 2017, complaint as the operative complaint. Signed by Judge Tanya Walton Pratt on 12/28/2017. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PAUL ROBERSON,
Plaintiff,
v.
Dr. PAUL TALBOT;
WEXFORD HEALTH SOURCES; and
CORIZON MEDICAL SERVICES,
Defendants.

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No. 1:17-cv-04110-TWP-DML

Entry Denying Motion File Amended Complaint,
Denying Motion for Class Certification,
and Directing Further Proceedings
Plaintiff Paul Roberson, an Indiana Department of Correction inmate, filed this 42 U.S.C.
§ 1983 action on November 6, 2017. Screening of the complaint pursuant to 28 U.S.C. § 1915A
was deferred until such time as the initial partial filing fee was paid. Before the initial partial filing
fee was received, Mr. Roberson filed a motion to amend his complaint and join parties and a
motion for class action status and certification.
I. Motion to File Amended Complaint
The original complaint had not yet been screened, and defendants had not yet been served
nor had they answered. Thus pursuant to Fed. R. Civ. P. 15(a), plaintiff could amend his complaint
once as a matter of course and thereafter with leave of court freely given when justice so required.
But plaintiff’s proposed amended complaint adds two more plaintiffs, both inmates of the
Department of Correction. Neither have paid a filing fee nor sought in forma pauperis status. While
they assert their claims against the same defendants are common, a review of the claims
demonstrate sufficient differences to require separate actions.

Each of the three purported plaintiffs have different medical conditions, sought different
medical treatments or medications, and had a different progression of treatment. The deliberate
indifference to serious medical needs standard is very fact-specific, requiring a case-by-case
assessment, and defenses are case-by-case as well. For instance, where there are delays in
obtaining treatment, the length of delay that is tolerable depends on the seriousness of the condition
and the ease of providing treatment. McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010); see
also Kress v. CCA of Tenn., LLC, 694 F.3d 890, 893 (7th Cir. 2012) (approving a district court’s
observation that “the level of medical care required . . . will vary depending on each inmate’s
circumstances”). Similar concerns surround levels of pain, changes in medication, and available
treatment options, just to name a few. Additionally, plaintiffs’ exhaustion of administrative
remedies may very well be different in each case.
In cases where joinder of pro se plaintiffs could be appropriate, the Seventh Circuit Court
of Appeals has held that the plaintiffs may join in one action, in compliance with Fed. R. Civ.
P. 20, but they must each either be assessed the full filing fee or have their in forma pauperis status
assessed individually. Boriboune v. Berge, 391 F.3d 852, 856 (7th Cir. 2004). This approach
prevents “prisoners who have ‘struck out’ under [20 U.S.C.] § 1915(g) and thus must prepay all
filing fees unless ‘under imminent danger of serious physical injury’ [from] tag[ing] along on a
joint complaint.” Id. at 854 (internal citations omitted).
Given that each of the plaintiffs in Mr. Roberson’s proposed amended complaint would
need to seek and obtain in forma pauperis status separately, or pay the entire filing fee separately,
it would be better for each plaintiff to proceed on his own in separate cases.
The motion to file an amended complaint that adds two additional plaintiffs, dkt. [8], is
denied.

Plaintiff Roberson shall have through January 29, 2018, in which to advise the Court he
will proceed on his original complaint or file an amended complaint that does not contain
additional plaintiffs. The failure to provide notice to the Court or file an amended complaint by
that date will result in the Court screening the November 6, 2017, complaint pursuant to 28
U.S.C. § 1915A, as the operative complaint. Any amended complaint will be subject to the same
screening requirement.
II. Motion for Class Action Status
None of the three proposed plaintiffs are attorneys, and therefore could not prosecute a
class action for other inmates. That fact alone requires denial of class action status. But moreover,
other than the claims against Wexford Health Services and Corizon Medical Services for their
hiring of Dr. Paul Talbot, the plaintiffs’ claims do not meet the requirements of Fed. R. Civ. P. 23.
Rule 23(a) sets out the conditions that must be met to certify a class action:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the
class.
Fed. R. Civ. P. 23(a).
The Court is not persuaded that there are questions of law or fact that are common to the
entire proposed class. The Court is not persuaded that the claims and defenses of the proposed
representative parties are typical of all proposed members of the class. Lastly, because plaintiff
and the proposed class representatives are not attorneys, they could not, at this time, satisfy the

fourth condition that they could “fairly and adequately protect the interests of the class.” Fed. R.
Civ. P. 23(a)(4). The motion for class action status, dkt. [9], is denied.
III. Conclusion
The motion to amend the complaint, dkt. [8], and motion for class certification, dkt. [9],
are denied. Plaintiff Paul Roberson has through January 29, 2018, in which to file an amended
complaint containing only his claims and no other plaintiffs, or to inform the Court he will proceed
with the November 6, 2017, complaint as the operative complaint.
IT IS SO ORDERED.

Date: 12/28/2017

Distribution:
Paul Roberson
218764
Pendleton Correctional Facility
Electronic Service Participant – Court Only