Alexander v. Calzetta et al
Filing
31
OPINION AND ORDER DENYING 20 Motion to Sever Based on Misjoinder of Parties and Claims--Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
D’ANDRE ALEXANDER,
Case No. 2:16-cv-13293
District Judge Mark A. Goldsmith
Magistrate Judge Anthony P. Patti
Plaintiff,
v.
NICHOLAS CALZETTA, et al.
Defendants.
__________________________/
OPINION AND ORDER DENYING STATE DEFENDANTS’ MOTION TO
SEVER BASED ON MISJOINDER OF PARTIES AND CLAIMS (DE 20)
I.
OPINION:
A.
Plaintiff brings his lawsuit against 18 defendants associated with
various MDOC locations.
D’Andre Alexander (#731077) is currently incarcerated at the MDOC’s
Macomb Correctional Facility (MRF) in New Haven, Michigan.
See
www.michigan.gov/corrections, “Offender Search.” On September 8, 2016, while
incarcerated at MRF, Hoosier filed the instant lawsuit against 18 defendants, who
are described as follows:
nine (9) Defendants are associated with the MDOC’s
Marquette Branch Prison (MBP) (Calzetta, Govern, Giesen,
Viitala, LaCount, Niemisto, Huss, Salmi and Meden), which is
located in Michigan’s upper peninsula,
eight (8) Defendants are associated with the MDOC’s
Woodland Center Correctional Facility (WCC) (Saad, Rosen,
1
Watkins, Lewis, Lee, Slaughter, Houston and Idemudia), which
is located in Whitmore Lake, Michigan, and
one (1) Defendant is associated with the MDOC’s Office of
Legal Affairs (Johnson).
(DE 1 at 2 ¶¶ 5-12.) The facts underlying his complaint span the period from
February 2, 2015, when Plaintiff was incarcerated at MBP, through February 2016,
when Plaintiff was incarcerated at WCC. (DE 1 at 2 ¶ 4, DE 1 at 3-7 ¶¶ 13-48.)
This case has been referred to me to conduct pretrial matters. (DE 8.)1
B.
Eight defendants have appeared, each of whom is associated with
MBP.
Of the eight defendants who have appeared, seven are State Defendants
(Nicholas Calzetta, Fred Govern, Darrin Viitala, Mandi Salmi, Kenneth Niemisto,
Kristine Giesen, and Chad LaCount) and one is Terry Meden, M.D. (DE 1 ¶¶ 5-6,
8-9; DEs 19, 25 and 26; see also DEs 10-16 and 18.) Each of these defendants is
identified as being associated with MBP. (DE 1 ¶¶ 5-9.)2
1
As will be mentioned later in this report, Plaintiff is a party to more than one case
in this district. See Alexander v. Hoffman et al, Case No. 2:15-cv-10294-DMLRSW (E.D. Mich.) (filed on 1/23/15 and dismissed on 6/7/16); Alexander v.
Nietzel, Case No. 2:16-cv-12071-NGE-PTM (E.D. Mich.) (filed 6/6/16); Alexander
v. Vittitou et al, Case No. 2:16-cv-12072-SJM-MKM (E.D. Mich.) (filed 6/6/16,
judgment entered 12/12/16, notice of appeal filed 1/17/17); and Alexander v.
Hoffman et al, Case No. 4:16-cv-12069-TGB-MKM (E.D. Mich.) (filed 6/6/16).
2
Huss is the only MBP defendant who has not appeared.
2
On November 29, 2016, the seven State Defendants filed a motion to sever
based on misjoinder of parties and claims. (DE 20.) A response, a reply and a surreply have been filed. (DEs 22-24.) In addition, Defendant Meden has filed a
concurrence in and adoption of the State Defendants’ motion. (DE 27.) Attempts
at service upon the ten remaining Defendants are ongoing. (DE 28-30.)
C.
Fed. R. Civ. P. 20 (“Permissive Joinder of Parties”)
Federal Rule of Civil Procedure 20 provides as follows with respect to
joinder of multiple parties in a single lawsuit:
Persons . . . 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. 20(a)(2) (emphases added). Thus, when joining multiple
defendants in a single action, both elements of the two-part test of Rule 20(a)(2)
must be met.3
3
Rule 18 governs the joinder of claims. However, in “actions involving multiple
defendants Rule 20 operates independently of Rule 18.” Proctor v. Applegate, 661
F.Supp.2d 743, 778 (E.D. Mich. 2009). Accordingly, the instant motion will be
analyzed under Rule 20.
3
The joinder of claims, parties, and remedies is “strongly encouraged” when
appropriate to further judicial economy and fairness. United Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 724 (1966). However, parties are not entitled to join
multiple defendants in a single suit when the claims are unrelated. See, e.g., Payne
v. Corr. Corp. of America, 194 F.3d 313, at *1 (6th Cir. 1999) (concluding
severance was proper where the claims did not arise from the same transactions or
occurrences); see also Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674,
682 (6th Cir. 1988) (upholding the trial court’s dismissal of “wholly unrelated
claims” against misjoined parties).
D.
Discussion
1.
The alleged facts underlying Plaintiff’s complaint span a
one year period and took place at two different correctional
facilities.
The factual allegations underlying Plaintiff’s complaint, and the locations
discussed therein, paint the following timeline:
a.
Facts underlying Plaintiff’s claims against 10 MBP
Defendants (February 2015 through January 2016)
On February 2, 2015, seemingly while incarcerated at MBP,
Plaintiff was involved in a fight and taken to segregation.
While this was happening, prison staff intentionally allowed his
television to be stolen in retaliation for filing grievances and for
filing a lawsuit less than two weeks earlier (Case No. 2:15-cv10294-DML-RSW (E.D. Mich.)). (DE 1 ¶ 13.)
When Plaintiff discovered who had the television, he notified
an officer who went to retrieve it. (DE 1 ¶ 14.) Thereafter,
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Plaintiff was labeled a “snitch,” a hit was ordered, and Plaintiff
was targeted. (DE 1 ¶ 15.) Plaintiff claims he was threatened
that “he would be stabbed and jumped by the gang members if
he returned to [the] general population.” (DE 1 ¶ 16.)
On May 6, 2015, in handcuffs, Plaintiff met with Salmi,
informed her of what had happened, and asked to be placed in
F-block’s ICP (Intermediate Care Program). According to
Plaintiff, F-block is “a secure unit where prisoners ha[v]e no
direct opportunities to have physical contact with each other.”
(DE 1 ¶ 17.) Salmi “refused to report the safety need . . .[,]”
and did not “document the notification of the safety risk.” (DE
1 ¶ 18.)
On May 11, 2015, Plaintiff informed Govern of the safety risk
and requested protection. However, Govern did not “act on the
situation.” (DE 1 ¶ 19.)
On June 3, 2015, in MBP’s Q-block, Plaintiff informed Huss of
the safety risk and requested protection. Huss believed the
situation was only about a television and did not “attempt to
report and[/]or intervene” regarding the safety risk. (DE 1 ¶
22.)
On June 16, 2015, Plaintiff informed Giesen about the safety
risk and “requested to be called out to talk more in depth” about
it. He also gave her a handwritten notice which requested
protection. (DE 1 ¶ 20.)
On June 17, 2015, Plaintiff asked Giesen how she was going to
handle the protection request. Giesen did not “attempt to report
or intervene . . . .” (DE 1 ¶ 21.)
On June 18, 2015, Huss and LaCount came to Plaintiff’s cell,
and Plaintiff told them about his need for protection. Plaintiff
gave LaCount a written summary of the situation, in which he
requested protection. Defendant Huss did not carry out the
assurance that he would “take care of it.” (DE 1 ¶ 23.)
5
On June 19, 2015, Giesen told Plaintiff, “Why should I help
you? All you do is write complaints on staff here.” (DE 1 ¶
21.)
On July 6, 2015, Meden offered to have Plaintiff taken out of
segregation and sent to MBP’s G-block, where there was a
Secure Status Outpatient Treatment Program (SSOTP). (DE 1
¶ 24.) Plaintiff responded that he could not be placed in the
general population, because of what had happened. He asked to
be placed in F-block, where there would be “no physical
contact with prisoners.” (DE 1 ¶ 25.) Meden agreed and had
Plaintiff “signed up for ICP placement in F-block.” (DE 1 ¶
26.)
On July 16, 2015, Niemisto offered to release Plaintiff from
segregation, presumably to MBP’s general population. Plaintiff
informed Niemisto of the situation and gave Niemisto a written
account of the incident, but Niemisto “did nothing to
accom[mo]date Plaintiff’s protection needs.” (DE 1 ¶ 44.)
On August 11, 2015, Plaintiff was placed into F-block. (DE 1 ¶
27.)
On August 21, 2015, Daphne M. Johnson of the MDOC’s
Office of Legal Affairs responded to Plaintiff’s July 16, 2015
request for a declaratory ruling. According to Plaintiff, Johnson
failed to act, refused to issue a ruling, and ignored his request.
(DE 1 ¶¶ 45-46, DE 1 at 13.)
On December 24, 2015, Plaintiff was placed into segregation
“due to a false misconduct.” (DE 1 ¶ 27; DE 1 at 17.)4
4
Plaintiff’s grievance response indicates that he was on observation from
December 24, 2015 to December 30, 2015. From December 30, 2015 to January
26, 2016, he was housed in MBP’s “Delta Block.” (DE 1 at 17.)
6
On January 22, 2016, Salmi offered to take Plaintiff out of
segregation and send him to MBP’s G-block, where there was
an SSOTP. (DE 1 ¶ 27.) Plaintiff declined, reiterated the
situation, and asked for protection/transfer. However, Salmi
did not attempt to intervene or report the safety risk. (DE 1 ¶
28.)
On January 25, 2016, Calzetta asked Plaintiff “to agree to leave
segregation and go to ‘G-Block.’” Plaintiff informed Calzetta
of the safety risk and requested protection. Calzetta responded
in part by revealing that he had been informed by Govern “how
those guys want [Plaintiff’s] head!” Thereafter, Viitala denied
Plaintiff’s request for protection due to “beefing with Govern.”
(DE 1 ¶ 29.)
On January 26, 2016, Meden offered to have Plaintiff sent to
WCC, Plaintiff responded that he was not comfortable with
transfer to WCC and reiterated his safety concern. Meden
“stated he would not have Plaintiff sent there.” (DE 1 ¶ 30.)
On January 27, 2016, Plaintiff was informed that he was going
to be transferred to WCC. Plaintiff let it be known that “he did
not approve of the disregard of his safety risk.” (DE 1 ¶ 31; see
also DE 1 at 17.)
b.
Facts underlying Plaintiff’s claims against 8 WCC
Defendants (January 2016 through February 2016)
Plaintiff informed WCC staff about the hit placed on him and
that he was in fear of his safety. Saad, Rosen and Watkins were
present. (DE 1 ¶ 32; see also DE 1 at 17.)
At some point, an inmate heard Plaintiff talking about the hit on
him to another prisoner. The inmate who overheard the
conversation “announced himself as a member of the gang that
put the hit on [Plaintiff] and then attacked [him].” (DE 1 ¶ 33
(emphasis added).) According to Plaintiff, he did not defend
himself and sustained a right ear injury, for which he sought
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treatment. Lewis and Lee then “had the inmate placed in his
cell.” (DE 1 ¶ 34; DE 1 at 12.)5
Saad and Rosen refused to accommodate Plaintiff’s need for
protection. (DE 1 ¶ 35.) Lewis and Watkins did not “act on the
safety risk.” (DE 1 ¶¶ 36-37.)
On February 12, 2016, Plaintiff was assaulted by an inmate.
Slaughter and Houston told the inmate “to go to his cell for a
‘cooldown’.” The prisoner was let out of his cell moments
later. (DE 1 ¶ 41.) Slaughter and Houston did not write the
inmate a misconduct ticket or put him in lockdown. Plaintiff
suffered a head injury and began to experience migraine
headaches, for which he sought treatment. (DE 1 ¶ 42; DE 1 at
12.) Plaintiff claims to have filed a grievance that same day but
did not receive a response. (DE 1 ¶ 51, DE 1 at 21.)
On February 16, 2016, Plaintiff informed Idemudia of the
situation and requested protection; however, Idemudia did not
take any action and, following more complaints about safety,
Idemudia threatened retaliation. (DE 1 ¶ 38.)
Plaintiff attempted to obtain protection from Slaughter and
Houston, but they did not “act on the notification.” (DE 1 ¶¶
39-40.)
To date, Plaintiff “now has to take Excedrin Migrain[e]
medicine [as] prescribed after [the] attacks on him.” (DE 1 ¶
48.)
2.
Grievance Identifier MBP-2016-02-00363-17I (Submitted
February 2016) appears to grieve several of the MBP
Defendants.
5
Defendants mistakenly interpret this claim as alleging that Defendants Lewis and
Lee placed Plaintiff in his cell. (Compare DE 1 ¶ 34, DE 20 at 7 ¶ 6.)
8
On or about February 9, 2016, while incarcerated at WCC, Plaintiff
completed an MDOC Step I grievance form, which concerns a February 3, 2016
incident and, although difficult to read, appears to grieve several of the abovedescribed MBP Defendants. (DE 1 at 16.) On March 2, 2016, (Nicholas) Calzetta
and (Darrin) Viitala provided the Step I Grievance Response and summarized:
“Prisoner Alexander never disclosed any information to staff at MBP about
needing protective custody. Prisoner was transferred to [WCC] for mental health
needs, no violations of policy have occurred.” (DE 1 at 17.)
What happened at Step II is unclear, although Plaintiff does provide a Step II
grievance appeal form which mentions several of the WCC defendants. (DE 1 at
18.) Nonetheless, Plaintiff’s Step III grievance appeal was received on May 9,
2016 and denied on May 31, 2016. (DE 1 at 19-20.)
3.
Plaintiff’s safety claims against the MBP Defendants are not
unrelated to those against the WCC Defendants.
Interpreting Plaintiff’s complaint as alleging “ten distinct claims against
eighteen individuals at two different prison facilities[,]” Defendants present the
sole argument that Plaintiff’s claims and Defendants “are improperly joined.” (DE
20 at 5, 8-12.) Namely, Defendants claim, the “unrelated claims should be severed
from this action.” (DE 20 at 12.)
The Court disagrees. First, Plaintiff’s own complaint makes clear that his
claims against the 18 named defendants:
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(a) stem from the February 2015
misappropriation of Plaintiff’s television, after which Plaintiff was allegedly
labeled a “snitch,” had a “hit” ordered on him, and was “targeted;” (b) continue
through his January 2016 transfer from MBP to WCC; and (c) concern two attacks
upon Plaintiff at WCC.
(DE 1 ¶¶ 13-16, 31-33, 41.)
Although Defendants
interpret Plaintiff’s initial factual allegations as alleging that “MDOC staff
intentionally allowed” Plaintiff’s property “to be stolen in retaliation” for his
grievances and lawsuit (see DE 20 at 6 ¶ 1), the Court views these allegations as a
backdrop for the allegation that Plaintiff had a hit placed on him – an allegation
from which stem the safety claims at issue in the instant complaint, involving
related treatment of these concerns at both facilities. This interpretation is affirmed
by Plaintiff’s complaint’s allegation that “ALL Defendants are liable for the two
attacks that Plaintiff encountered [while at WCC],” particularly Niemisto and
Johnson. (DE 1 ¶ 43.) Consistently, within his “claims for relief,” Plaintiff asserts,
among other things, that:
all Defendants were “personally aware of a serious safety risk
and intentionally fail[ed]/refus[ed] to act on the serious safety
risk . . . .”
Calzetta, Govern, Giesen, Viitala and Salmi of MBP “refus[ed]
to act on the serious safety risk . . . .”
Huss, Niemisto and LaCount of MBP exhibited “intentional
disregard” and alleges that they “refused to act.”
10
Idemudia of WCC threatened retaliation “if Plaintiff didn[’]t
stop complaining about his fear [for] his safety” and “continued
to ignore serious safety risk which led to assault on Plaintiff.”
Slaughter of WCC “initially disregarded the serious safety risk
because he didn[’]t like how Plaintiff was ‘complaining.’” (DE
1 ¶ 56.)
(DE 1 ¶¶ 52-56 (emphases added).)
As is evident from these paragraphs,
Plaintiff’s claims against Defendants – whether associated with Plaintiff’s
imprisonment at MBP or WCC - are based upon an alleged and ongoing “serious
safety risk.”
Second, Plaintiff’s response supports an interpretation of his complaint as
alleging claims as “arising out of the same . . . series of transactions or
occurrences[.]” Fed. R. Civ. P. 20(a)(2)(A). Specifically, he responds that all
defendants “played a significant role in the two assaults that Plaintiff endured[.]”
Moreover, with particular reference to the State Defendants’ characterization of his
claims, Plaintiff states that all of his claims “are related to all defend[a]nts who
allowed for Plaintiff to be assaulted twice[,]” and “who failed to protect him[;]” in
other words, he is not suing for property loss or denial of medical care. (DE 22 at
2, 7.) As Plaintiff explains, the hit placed upon him at MBP is “common” to his
claims against each of the Defendants. (DE 22 at 3.) Then, referring to several of
the factual allegations in his complaint, Plaintiff claims he “has . . . demonstrated
the domino effect in which he went from MDOC employee to MDOC employee
11
notifying them of serious safety risk, only to be disregarded by them.” (DE 22 at
3-7.)
In Plaintiff’s words, his claims for relief “revolve around Defend[a]nts
disregarding serious safety risk[,]” which paved the trajectory to two assaults.
(Compare DE 1 ¶¶ 52-56, DE 22 at 7.)6
Third, Defendants’ reply does not effectively challenge the conclusion that
Plaintiff’s claims against the various MBP and WCC Defendants are related. For
example, Defendants note that these institutions are “more than 400 miles apart . . .
.” This assertion, even if true, is unavailing, given Plaintiff’s allegation that he was
transferred directly from MBP to WCC. Defendants also contend that “the MBP
claims involved Alexander’s placement within and transfer from the facility,
whereas the WCC claims involved distinct incidents of where Alexander was
attacked.” (DE 23 at 2.) However, Plaintiff’s sur-reply buttresses the conclusion
that his claims against the MBP and WCC defendants are connected by the hit
6
Additionally, Plaintiff points out that, on March 31, 2016, Executive Magistrate
Judge Whalen entered an opinion and order denying Defendants’ Motion to Sever
Based on Misjoinder of Parties and Claims in Alexander v. Hoffman et al, Case No.
2:15-cv-10294-DML-RSW (E.D. Mich.). (DE 22 at 8.) This case involved a 47page, 283-paragraph complaint against approximately 20 MDOC employees, most
of whom were associated with Saginaw Correctional Facility and one of whom
was associated with Chippewa Correctional Facility, to which Plaintiff was
eventually transferred. In sum, the Court concluded that “[a]lthough the claims
against each Defendant cover a range of alleged constitutional violations, they are
all related to Plaintiff’s claim of retaliation and conspiracy to retaliate for his
having filed grievances.” (Case 15-10294 (DE 63).)
12
allegedly placed upon him at MBP and the two assaults that allegedly occurred at
WCC:
. . . his claims and defendants are properly joined, and . . . Defendants
are trying to have Plaintiff’s claims severed solely because of
economic and geographical reasons by virtue of upper pen[in]sula
defend[a]nts being joined in the [E.D. Mich.]. . . . The assaults
Plaintiff endured w[ere] due to all defend[a]nts’ deliberate
indiff[e]rence, and are all connected through a series of occur[e]nces.”
(DE 24 at 1.) I agree that the claims and parties are properly joined. Moreover,
judicial economy favors keeping these claims and parties together; if the Court
were to grant severance, it appears that much of the evidence to be sifted, and
many of the witnesses, would be common to both lawsuits.
E.
Conclusion
Of course, none of the above analysis is a commentary on whether Plaintiff
will succeed in his claims against the various MBP and WCC Defendants. That
question will more likely be addressed via a Fed. R. Civ. P. 12 motion to dismiss
or a Fed. R. Civ. P. Rule 56 motion for summary judgment. Still, Plaintiff is the
master of his complaint, and, as such, he is entitled to characterize his claims,
whether or not they will end up surviving dispositive motion practice. At this point
- given Plaintiff’s multiple assertions that his claims against Defendants stem from
their disregard of his serious safety risk and the Supreme Court’s direction that the
joinder of claims, parties, and remedies is “strongly encouraged,” United Mine
Workers of Am., 383 U.S. at 724 – the Court will deny the State Defendants’
13
motion to sever. Plaintiff is invited, but certainly not required, to consider whether
all of the named Defendants are necessary to his success in this lawsuit, and
whether the voluntary dismissal of one or more Defendants would make this case
more manageable.7
II.
ORDER:
Accordingly, the State Defendants’ motion to sever based on misjoinder of
parties and claims (DE 20) is DENIED.
Dated: May 18, 2017
s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
I hereby certify that a copy of the foregoing document was sent to parties of record
on May 18, 2017 electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti
7
This opinion has been issued by way of an order rather than a report and
recommendation. As then-Magistrate Judge Michelson recognized, albeit in an
unpublished case, “other courts have treated a motion to sever as non-dispositive.”
Third Degree Films v. Does 1-36, No. 11-cv-15200, 2012 WL 2522151, *1 n.1
(E.D. Mich. May 29, 2012) (citing cases).
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