Green v. Callahan

Filing 4

OPINION AND ORDER DISMISSING CASE. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WALTER GREEN,
Plaintiff,
Civil No: 2:14-CV-11453
HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT COURT

v.
JAMES A. CALLAHAN, et. al.,
Defendants,
_________________________________________/

OPINION AND ORDER DENYING PLAINTIFF’S APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF FEES AND DISMISSING WITHOUT PREJUDICE THE
COMPLAINT
I. INTRODUCTION
Before the Court is Plaintiff Walter Green’s civil rights complaint filed under 42 U.S.C. §
1983. Plaintiff is a pre-trial detainee currently confined at the Wayne County Jail in Detroit,
Michigan. For the reasons stated below, plaintiff’s application to proceed without prepayment of
fees is denied and the complaint is dismissed without prejudice.
II. COMPLAINT
Plaintiff’s complaint alleges that Defendant James A. Callahan, a judge with the Wayne
County Circuit Court, violated his right to a speedy trial by not bringing him to trial on
unspecified criminal charges within 180 days as required by M.C.R. 6.004C. Plaintiff further
claims that unnamed members of the Detroit Police Department’s Second Precinct held him for
over seventy two hours after his arrest on these charges before having him arraigned. Plaintiff
claims that defendant Kym Worthy, the Wayne County Prosecutor, violated his rights by failing

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to sign the felony information that was used to charge him with these criminal offenses. Plaintiff
claims that while incarcerated at the Wayne County Jail, he has been subjected to unsanitary
living conditions by unnamed personnel of the Wayne County Sheriff’s Department.
III. DISCUSSION
Plaintiff has asked to proceed without prepayment of fees. Plaintiff’s complaint,
however, involves claims which arise out of separate incidents and which involve different
parties and unrelated issues. “[C]oncerns about management of a case in which plaintiffs are
allowed to join claims arising from separate incidents each involving different parties and
predominantly unrelated issues weigh heavily against exercising discretion, when any exists
under the Federal Rules, to bring into one civil action such a complex array of claims and
parties. This is an added reason for early case screening in which the court, in the exercise of
case management authority, imposes some form of reasonably stringent particularity-of-claim
requirement.” Feliciano v. DuBois, 846 F. Supp. 1033, 1048 (D. Mass. 1994).
Fed. R. Civ. P. Rule 20(a) limits the joinder of parties in single lawsuit, whereas Fed. R.
Civ. P. 18(a) limits the joinder of claims. Fed. R. Civ. P. Rule 20(a)(2) governs when multiple
defendants may be joined in one action: “[p]ersons ... 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. Rule 18(a) states: “A party asserting a claim ... may join, as independent
or alternative claims, as many claims as it has against an opposing party.”
Where multiple parties are named, as in this case, the analysis under Fed. R. Civ. P. Rule

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20 precedes that under Fed. R. Civ. P. Rule 18:
“Rule 20 deals solely with joinder of parties and becomes relevant only when there
is more than one party on one or both sides of the action. It is not concerned with
joinder of claims, which is governed by Rule 18. Therefore, in actions involving
multiple defendants Rule 20 operates independently of Rule 18 ...”
“Despite the broad language of Rule 18(a), plaintiff may join multiple defendants in
a single action only if plaintiff asserts at least one claim to relief against each of them
that arises out of the same transaction or occurrence and presents questions of law
or fact common to all ...”
Proctor v. Applegate, 661 F. Supp. 2d 743, 778 (E.D. Mich. 2009)(quoting Garcia v. Munoz, 2008
WL 2064476, *3 (D.N.J. May 14, 2008)(quoting, Charles Allen Wright, Arthur R. Miller, Mary Kay
Kane, 7 Federal Practice & Procedure Civil 3d, § 1655).
Therefore, “a civil plaintiff may not name more than one defendant in his original or
amended complaint unless one claim against each additional defendant is transactionally related
to the claim against the first defendant and involves a common question of law or fact.” Proctor,
661 F. Supp. 2d at 778. A federal court may consider many different factors when determining
whether civil rights claims arise from the same transaction or occurrence, including, “the time
period during which the alleged acts occurred; whether the acts of ... are related; whether more
than one act ... is alleged; whether the same supervisors were involved, and whether the
defendants were at different geographical locations.” Id. (quoting Nali v. Michigan Dep't of
Corrections, 2007 WL 4465247, * 3 (E.D. Mich. December 18, 2007)).
In the present case, plaintiff’s attempt to join together a number of unrelated claims and
defendants into one action would thwart the purpose of the Prison Litigation Reform Act
(PLRA), which was to reduce the large number of frivolous prisoner lawsuits that were being
filed in the federal courts. See Riley v. Kurtz, 361 F. 3d 906, 917 (6th Cir. 2004). Under the

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PLRA, a prisoner may not commence an action without prepayment of the filing fee in some
form. See 28 U.S.C. § 1915(b)(1). These “new fee provisions of the PLRA were designed to
deter frivolous prisoner litigation by making all prisoner litigants feel the deterrent effect created
by liability for filing fees.” Williams v. Roberts, 116 F. 3d 1126, 1127-28 (5th Cir. 1997). The
PLRA also contains a “three-strikes” provision requiring the collection of the entire filing fee
after the dismissal for frivolousness, etc., of three actions or appeals brought by a prisoner
proceeding in forma pauperis, unless the statutory exception is satisfied. 28 U.S.C. § 1915(g).
The “three strikes” provision was also an attempt by Congress to curb frivolous prisoner
litigation. See Wilson v. Yaklich, 148 F. 3d 596, 603 (6th Cir. 1998).
The Seventh Circuit has explained that a prisoner like plaintiff may not join in one
complaint all the defendants against whom he may have a claim, unless the prisoner satisfies the
dual requirements of Rule 20(a)(2):
“Thus multiple claims against a single party are fine, but Claim A against Defendant
1 should not be joined with unrelated Claim B against Defendant 2. Unrelated
claims against different defendants belong in different suits, not only to prevent the
sort of morass that [a multi]-claim, [multi]-defendant suit produced but also to ensure
that prisoners pay the required filing fees-for the Prison Litigation Reform Act limits
to 3 the number of frivolous suits or appeals that any prisoner may file without
prepayment of the required fees. 28 U.S.C. § 1915(g) ...”
“A buckshot complaint that would be rejected if filed by a free person-say, a suit
complaining that A defrauded the plaintiff, B defamed him, C punched him, D failed
to pay a debt, and E infringed his copyright, all in different transactions-should be
rejected if filed by a prisoner.”
George v. Smith, 507 F. 3d 605, 607 (7th Cir. 2007).
The Fifth Circuit has likewise discouraged “creative joinder of actions” by prisoners
attempting to circumvent the PLRA’s three-strikes provision. See Patton v. Jefferson
Correctional Center, 136 F. 3d 458, 464 (5th Cir. 1998).
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“In light of the PLRA provisions ... to continue the practice of allowing joinder of claims
which are not in compliance with Rule 18 and Rule 20 [of the Federal Rules of Civil Procedure]
would be to defeat, or at least greatly dilute, the clear intent of the fee payment and three-strikes
provisions of the statute.” Walls v. Scott, 1998 WL 574903, * 3 (N.D.Tex. Aug. 28, 1998). Other
courts have reached similar conclusions. See Brown v. Blaine, 185 Fed. App’x 166, 168-69 (3rd
Cir. 2006)(allowing an inmate to assert unrelated claims against new defendants based on actions
taken after the filing of his original complaint would have defeated the purpose of the three
strikes provision of PLRA); Shephard v. Edwards, 2001 WL 1681145, * 1 (S.D. Ohio August
30, 2001)(declining to consolidate prisoner’s unrelated various actions so as to allow him to pay
one filing fee, because it “would improperly circumvent the express language and clear intent of
the ‘three strikes’ provision”); Scott v. Kelly, 107 F. Supp. 2d 706, 711 (E.D. Va. 2000)(denying
prisoner’s request to add new, unrelated claims to an ongoing civil rights action as an improper
attempt to circumvent the PLRA’s filing fee requirements and an attempt to escape the
possibility of obtaining a “strike” under the “three strikes” rule); Cf. Proctor, 661 F. Supp. 2d at
777 (refusing to allow the joinder in a single multi-plaintiff complaint of a variety of claims,
because “[E]ach separate claim by each plaintiff will require a particularized analysis regarding
statute of limitations, exhaustion of administrative remedies, and on the substance.”). Harris v.
Spellman, 150 F.R.D. 130, 131-32 (N.D. Ill. 1993)(Permissive joinder was not available with
respect to two inmates’ pre-PLRA § 1983 claims which not only involved different occurrences,
but also raised different issues of law; allegedly similar procedural errors do not convert
independent prison disciplinary hearings into same “series” of transactions or occurrences for
purposes of permissive joinder).

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To allow plaintiff to proceed with these improperly joined claims and defendants in a
single action would permit him to circumvent the PLRA’s filing fee provisions and allow him to
avoid having to incur a “strike,” for purposes of by § 1915(g), should any of his claims turn out
to be frivolous.
The Court recognizes that misjoinder of parties is not normally sufficient to dismiss an
action in its entirety, although misjoined parties can be dismissed from the action by the Court.
See Proctor, 661 F. Supp. 2d at 781 (citing Fed. R. Civ. P. 21)(additional citations omitted).
However, in this case, there are further problems with plaintiff’s complaint that favor dismissal
of the entire action. Plaintiff’s application to proceed without prepayment of fees is insufficient
because plaintiff did not include a signed certification of prison trust fund account or a current
computerized trust fund account showing the history of the financial transactions in plaintiff’s
institutional trust fund account for the past six months. 28 U.S.C. § 1915(a)(2) requires a
prisoner who wishes to proceed without prepayment of fees and costs in a civil complaint in
federal court to file a certified copy of the trust fund account statement for that prisoner for the
six month period immediately preceding the filing of the complaint or notice of appeal, obtained
from the appropriate official of each prison or jail at which the prisoner is or was confined. See
also McGore v. Wrigglesworth, 114 F. 3d 601, 605 (6th Cir. 1997).
Plaintiff also failed to provide enough copies of the complaint for service upon all of the
defendants. In addition, plaintiff has failed to identify the defendants whom were involved with
the alleged violations of his constitutional rights either at the Detroit Police Department or at the
Wayne County Jail. Where a plaintiff is proceeding in forma pauperis, the district court must
bear the responsibility for issuing the plaintiff’s process to a United States Marshal’s Office, who

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must effect service upon the defendants once the plaintiff has properly identified the defendants
in the complaint. Williams v. McLemore, 10 F. App’x 241, 243 (6th Cir. 2001); Byrd v. Stone, 94
F.3d 217, 219 (6th Cir. 1996); Fed. R. Civ. P. 4(c)(2); 28 U.S.C. § 1915(d). Because plaintiff has
not properly identified all of the defendants whom he wishes to sue, the current complaint is
deficient.
Accordingly, the Court will deny plaintiff’s application to proceed without prepayment of
fees and will dismiss the complaint without prejudice.
IV. ORDER
IT IS ORDERED that “Prisoner’s Application to Proceed Without Prepayment of Fees
and Costs and Authorization to Withdraw Funds from Trust Fund Account” [Court Docket Entry
# 2] is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the “Prisoner Civil Rights Complaint” [Court Docket
Entry # 1] is DISMISSED WITHOUT PREJUDICE.
SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: April 23, 2014
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or
party of record herein by electronic means or first class U.S. mail on April 23, 2014.

s/Deborah Tofil
Case Manager

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