Stornello et al v. Heyns

Filing 44

ORDER Adopting in part and rejecting in part 42 Report and Recommendation, granting 29 Motion to Amend/Correct filed by Angelo Stornello, denied without prejudice 19 Motion to Dismiss filed by Daniel Heyns, and denied 24 Motion filed by William Hays Signed by District Judge Bernard A. Friedman. (CMul)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANGELO STORNELLO,
Plaintiffs,
vs.

Civil Action No. 13-CV-13674
HON. BERNARD A. FRIEDMAN

DANIEL HEYNS,
Defendant.
___________________________/
ORDER ACCEPTING IN PART AND REJECTING IN PART
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter is presently before the Court on defendant’s motion to dismiss [docket
entry 19], plaintiff Hays’ “motion in opposition to defendant’s motion to dismiss” [docket entry 24],
and plaintiff Stornello’s “motion to amend pleading” [docket entry 29]. Magistrate Judge Mona K.
Majzoub has submitted a Report and Recommendation (“R&R”) in which she recommends that the
first two motions be denied and that the third motion “be [granted] and that Plaintiffs be ordered to
file a consolidated amended complaint.” No party has objected to the R&R and the objection period
has expired.
The Court agrees with the magistrate judge’s analysis and recommendation as to
defendant’s motion to dismiss and plaintiff Hays’ “motion in opposition to defendant’s motion to
dismiss.” However, the Court rejects in part the recommended disposition of plaintiff Stornello’s
motion to amend. Certainly, as the magistrate judge correctly notes, amendments are allowed as a
matter of course when, as here, they are filed (or, in this case, sought) within 21 days after the filing
of a motion to dismiss. See Fed. R. Civ. P. 15(a)(1)(B). In this case, however, plaintiffs have caused
a procedural difficulty by purporting to be suing collectively, but then filing motions and pleadings

signed by only one of the plaintiffs, generally but not always Stornello. For example, the initial
complaint [docket entry 1] is signed only by Stornello, although six other inmates (Hays, Urban,
Lindensmith, Copeland, Smith, and Hunt) signed forms which are attached to the complaint
authorizing withdrawals from their prison trust accounts to pay the filing fee. The motion for a
preliminary injunction and first “motion to amend complaint” are signed only by Stornello, although
he purported to be acting for “plaintiff’s.’” See docket entries 8 and 15. Plaintiff Lindensmith filed
a response to defendant’s motion to dismiss, apparently only on his own behalf. See docket entry
23. Plaintiff Hays filed the above-referenced “plaintiffs motion in opposition to defendants’s motion
to dismiss,” purportedly as plaintiffs’ “proper representative,” although no other plaintiffs signed
it. See docket entry 24. Simultaneously, Hays filed “plaintiffs amended complaint,” but again only
he signed it, albeit as “Pro Per Representative.” See docket entry 25. Stornello then filed his own
response to defendant’s motion to dismiss and the above-referenced “motion to amend pleading,”
apparently only on his own behalf. See docket entries 28 and 29. Recently, the Court adopted the
magistrate judge’s recommendation to dismiss the complaint as to plaintiff Urban at his request and
as to plaintiff Hays for failing to keep the Court apprised of his current address.
From among Stornello, Hays, Urban, Lindensmith, Copeland, Smith, and Hunt, only
Stornello and Hays signed any version of the complaint and, as noted, Hays is no longer involved
in this case. Therefore Stornello is the only party plaintiff. As he is not a member of the bar, he may
not represent others. If any of the other inmates wish to file their own complaints, they are free to
do so.1 But as they have not signed any of the pleadings or motion papers, as required by Fed. R.

1

In this context, the comments of the court in Shabazz v. Giurbino, 2013 WL 4854395, at
* 3 (E.D. Cal. Sept. 10, 2013), are worth repeating:
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Civ. P. 11(a), and cannot be represented by a non-lawyer, they are not parties in the present case.
Plaintiff Stornello’s motion to amend is granted, but with the understanding that he is the only
plaintiff in this case. Accordingly,

IT IS ORDERED that Magistrate Judge Majzoub’s R&R is accepted in part and
rejected in part as indicated above.

IT IS FURTHER ORDERED that defendant’s motion to dismiss [docket entry 19]
is denied without prejudice.

IT IS FURTHER ORDERED that Hays’ “motion in opposition to defendant’s motion
to dismiss” [docket entry 24] is denied.

IT IS FURTHER ORDERED that Stornello’s “motion to amend pleading” [docket
entry 29] is granted, with the understanding that Stornello is the sole plaintiff from this point

[A]n action brought by multiple pro se and incarcerated plaintiffs
presents procedural problems that cause delay and confusion. Delay
often arises from the frequent transfer of inmates to other facilities
and institutions, the changes in address when inmates are released
from prison, and the limited ability of incarcerated inmates to
communicate with each other. Further, the need for all plaintiffs to
coordinate and agree on the filings made in this action and the
requirement that all filings include the original signatures of all
plaintiffs will lead to further delay and confusion. Accordingly, the
Court will not allow this action to proceed on behalf of multiple
plaintiffs and will require each plaintiff to file his own separate
lawsuit.
3

forward. The proposed amended complaint that is attached to this motion as an exhibit is deemed
filed as of the date of this order.

_s/ Bernard A. Friedman__
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated: June 19, 2014
Detroit, Michigan

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