McLaurin et al v. Bagley et al

Filing 4

OPINION AND ORDER SUMMARILY DISMISSING CASE Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JACK MCLAURIN, Jr, et. al.,
Plaintiffs,

Civil Action No. 2:17-11263
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT COURT

v.

DENNIS BAGLEY, et. al.;
Defendants,
/
OPINION AND ORDER SUMMARILY DISMISSING THE COMPLAINT
This is a prisoner civil rights case under 42 U.S.C. § 1983. Plaintiffs Jack
McLaurin, Jr. (“McLaurin”) and Shane Tomczyk (“Tomczyk”) are inmates confined at
the Oakland County Jail in Pontiac, Michigan. They seek to file a joint civil rights
complaint. The complaint is DISMISSED WITHOUT PREJUDICE. The individual
plaintiffs may file separate complaints for themselves.
I. Background
Jack McLaurin, Jr. claims that his attorney, Dennis Bagley, and Assistant Oakland
County Prosecutor Marc Keast, two of the named defendants, tricked him into waiving
his preliminary examination in the 46th District Court in Southfield, Michigan on
September 14, 2016. McLaurin brought this to the attention of Oakland County Circuit
Court Judge Michael Warren on September 22, 2016 and demanded that a preliminary
examination be conducted if Assistant Prosecutor Keast did not honor a plea agreement

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previously offered. In response to Judge Warren’s questions, McLaurin denied signing
the waiver of preliminary examination form in the district court. Bagley admitted to
Judge Warren that he signed the waiver of preliminary examination form on McLaurin’s
behalf. Judge Warren removed Bagley from the case; he appointed Eric Wilson, another
named defendant, as McLaurin’s attorney.
McLaurin claims that Wilson refused to bring criminal charges against Keast or
Bagley for tricking him into waiving his preliminary examination. McLaurin claims that
Wilson refused to file motions on his behalf or give him documents pertaining to his case.
McLaurin fired Wilson and hired Jeffrey Edison, another named defendant, to
represent him in his criminal case. McLaurin claims that Edison failed to file motions or
give him any documents in his case. McLaurin claims that on March 1, 2017, the judge
ordered Edison to re-file certain motions that McLaurin filed on his own behalf.
McLaurin claims that Edison went to Ghana on March 1, 2017 without filing motions.
In an attached affidavit, McLaurin claims that he wrote Oakland County
Prosecutor Jessica Cooper and Chief Judge Nanci J. Grant, two additional named
defendants, and requested that criminal charges be brought against Keast and Bagley for
forgery, fraud, obstruction of justice, and other charges. McLaurin claims that
Defendants Cooper and Judge Grant are covering up these crimes.
Plaintiff Tomczyk claims that he hired attorney Frank K. Mandelbaum to represent
him in a criminal case. Tomczyk says he waived his preliminary examination in the 55th
District Court in Oakland County, Michigan in March of 2017. Tomczyk claims that his
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attorney rescheduled the arraignment on the information in the Oakland County Circuit
Court. Tomczyk alleges that defendants Keast and Bagley forged and signed his name to
a waiver of the arraignment on the information form in the Oakland County Circuit Court
on March 17, 2017. Tomczyk appeared in the Oakland County Circuit Court on March
20, 2017 and was informed by Judge Daniel Patrick O’Brien, another named defendant,
that he waived his arraignment on the information. Tomczyk informed Judge O’Brien
that he did not sign the waiver form. Judge O’Brien asked Keast whose signature was on
the form. Tomczyk claims that Bagley was in court and admitted to forging Tomczyk’s
name on the waiver of arraignment form. McLaurin alleges that Judge O’Brien refused to
report this crime to the proper authorities.
II. Discussion
The Court dismisses the complaint without prejudice for several reasons.
First, Tomczyk did not file an application to proceed in forma pauperis, nor has he
paid any portion of the $ 350.00 filing fee or the $ 50.00 administrative fee.
The Prisoner Litigation Reform Act of 1995 (PLRA) states that “if a prisoner
brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to
pay the full amount of a filing fee.” 28 U.S.C. § 1915(b)(1)(as amended). See also In Re
Prison Litigation Reform Act, 105 F.3d 1131, 1138 (6th Cir. 1997). The in forma
pauperis statute, 28 U.S.C. § 1915(a), does provide prisoners the opportunity to make a
“downpayment” of a partial filing fee and pay the remainder in installments. See Miller v.
Campbell, 108 F. Supp. 2d 960, 962 (W.D. Tenn. 2000). Although the PLRA does not
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specify how fees are to be assessed when multiple prisoners file a joint complaint, the
Sixth Circuit suggested that fees and costs should be divided equally in such cases
between the plaintiffs. In Re Prison Litigation Reform Act, 105 F. 3d at 1137-38. 1
Under the PLRA, a prisoner may bring a civil action in forma pauperis if he or she
files an affidavit of indigency and a certified copy of the trust fund account statement for
the six month period immediately preceding the filing of the complaint. See 28 U.S.C.A.
§ 1915(a). If the inmate does not pay the full filing fee and fails to provide the required
documents, the district court normally must notify the prisoner of the deficiency and grant
him or her thirty days to correct it or pay the full fee. See McGore v. Wrigglesworth, 114
F.3d 601, 605 (6th Cir.1997). If the prisoner does not comply, the district court must
presume that the prisoner is not a pauper, assess the inmate the full fee, and order the case
dismissed for lack of prosecution. Id.
Tomczyk did not file an application to proceed in forma pauperis or the required
supporting documentation; the complaint is deficient.

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Although the courts of this district relied on the administrative order in In Re Prison Litigation Reform
Act for the rule that the filing fee should be apportioned between multiple prisoner plaintiffs, See e.g. Williams v.
Lafler, No. 08-13821, 2009 WL 87004, at *1 (E.D. Mich. Jan.12, 2009); Coleman v. Granholm, No. 06-12485, 2007
WL 1011662, at *2 (E.D.Mich. Mar. 29, 2007), other district courts within the Sixth Circuit concluded that since the
Sixth Circuit’s administrative order in that case “did not consider the impact of Fed.R.Civ.P. 20 on implementation
of the PLRA [or the fact that] the PLRA was designed to make prisoners feel the deterrent effect of the filing fee ...
[courts should conclude that] each separate plaintiff is individually responsible for a full filing fee....” Jones v.
Fletcher, No. A.05CV07-JMH, 2005 WL 1175960, at * 6 (E.D. Ky. May 5, 2005); Lawson v. Sizemore, No.
A.05-CV-108-KKC, 2005 WL 1514310, at * 1 n. 1 (E.D. Ky. June 24, 2005). Other circuits held that each prisoner
in a multiple prisoner plaintiff action is required to pay the entire filing fee rather than have the fee apportioned
among the different prisoners. See e.g. Hagan v. Rogers, 570 F. 3d 146, 155-56 (3rd Cir. 2009); Boriboune v. Berge,
391 F.3d 852, 855-56 (7th Cir. 2004); Hubbard v. Haley, 262 F.3d 1194, 1198 (11th Cir. 2001). The Sixth Circuit’s
approach unfortunately “creates difficult problems of apportionment when some plaintiffs have funds in their trust
accounts, others do not, and still others have “struck out” under § 1915(g) and can no longer proceed in forma
pauperis”[.] as is the problem with this case. Boriboune v. Berge, 391 F.3d at 855.

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McLaurin submitted an application to proceed without prepayment of fees, but the
application does not include a financial certificate signed by Plaintiff’s custodian or
designee. McLaurin’s application to proceed in forma pauperis is therefore deficient. See
Hart v. Jaukins, 99 F. App’x. 208, 209-10 (10th Cir. 2004).
A second problem with the complaint is that McLaurin may not even be eligible to
proceed in forma pauperis; he has at least three prior civil actions that were dismissed as
frivolous, malicious, or for failing to state a claim upon which relief can be granted. See
McLaurin v. Van Ochten et al., No. 5:01-cv-31 (W.D. Mich. May 11, 2001); McLaurin v.
Butler et al., No. 1:97-cv-346 (W.D. Mich. Oct. 17, 1997); McLaurin v. Jabe, No.
2:91-cv-70224 (E.D. Mich. Jan. 28, 1991). McLaurin was subsequently denied
permission to proceed in forma pauperis because of these dismissals. McLaurin v.
Kilpatrick, No. 1:05-CV-574, 2005 WL 2155962, at * 2 (W.D. Mich. Sept. 7, 2005).
The three strikes provision of the PLRA prohibits a prisoner, who had three prior
suits dismissed for being frivolous, from proceeding in forma pauperis in a civil rights
suit absent an allegation that the prisoner is in imminent danger of serious physical injury.
See Clemons v. Young, 240 F. Supp. 2d 639, 641 (E.D. Mich. 2003)(Lawson, J.). A
federal district court may sua sponte raise the three strikes provision of the PLRA on its
own initiative. Witzke, 966 F. Supp. at 539.
If any of the plaintiffs had filed an individual complaint with the above mentioned
deficiencies, this Court would issue an order for that plaintiff to correct the deficiencies
within a certain period of time. If the plaintiff corrected the deficiencies, the case would
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proceed. If the plaintiff did not correct the deficiencies, the complaint would be
dismissed. In addition, McLaurin would have an opportunity to argue that his case is not
subject to dismissal under § 1915(g) because he is subject to imminent danger. If he
could not make that showing, McLaurin would still be able to resume any of the claims
dismissed under § 1915(g) if he paid the filing fee under the fee provisions of 28 U.S.C. §
1914. Witzke, 966 F. Supp. at 540. This Court is concerned about the potential prejudice
to each plaintiff if there were delays by the other plaintiff in correcting the deficiencies
and/or McLaurin addressing his eligibility to proceed in forma pauperis in light of
dismissals of the cases for frivolousness.
Another potential problem with the current complaint is that the plaintiffs’ claims
may be subject to severance or dismissal because of misjoinder. Federal Rule of Civil
Procedure 21. Under that Rule, the Court may sua sponte dismiss or sever parties and
claims in a civil action. Rule 21 provides:
Misjoinder of parties is not a ground for dismissing an action. On motion
or on its own, the court may at any time, on just terms, add or drop a party.
The court may also sever any claim against a party.
Fed. R. Civ. P. 21. See also Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674,
682 (6th Cir. 1988)(“Parties may be dropped ... by order of the court ... of its own
initiative at any stage of the action and on such terms as are just.”).
The joinder of claims, parties, and remedies is “strongly encouraged” when
appropriate to further judicial economy and fairness. See United Mine Workers of
America v. Gibbs, 383 U.S. 715, 724 (1966). Parties, however, should not be permitted to
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join multiple plaintiffs and multiple defendants into a single lawsuit when the claims are
unrelated. See, e.g., Pruden v. SCI Camp Hill, 252 F. App’x. 436, 437 (3rd Cir. 2007)(per
curiam); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); Coughlin v. Rogers, 130
F.3d 1248, 1350 (9th Cir. 1997); Proctor v. Applegate, 661 F. Supp. 2d 743, 778 (E.D.
Mich. 2009)(Borman, J.)(adopting magistrate judge’s report).
Federal Rule of Civil Procedure 18 governs the joinder of claims and Federal Rule
of Civil Procedure 20 governs the permissive joinder of parties. Rule 18(a) provides: “A
party asserting a claim ... may join, as independent or alternative claims, as many claims
as it has against an opposing party.” Fed. R. Civ. P. 18(a). Rule 20(a)(1) addresses when
multiple plaintiffs may bring a joint action: “Persons may join in one action as plaintiffs
if: (A) they assert any right to relief 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 plaintiffs will arise in the action.” Fed.
R. Civ. P. 20(a)(1). Rule 20(a)(2) addresses when multiple defendants may be joined in
one action: “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). When multiple parties are named, the analysis under Rule 20
precedes that under Rule 18. See, e.g., Proctor v. Applegate, 661 F. Supp. 2d at 778.
When joining either multiple plaintiffs or multiple defendants in a single action, the two7

part test of Rule 20(a)(1) or 20(a)(2) must be met.
Plaintiffs may be unable to meet the two-part test of Rule 20(a) for the joinder of
multiple plaintiffs. Their claims do not appear to arise out of the same transaction,
occurrence, or series of transactions or occurrences; their claims are personal to each of
them and involve distinct factual scenarios even though the applicable legal standards
may be the same. See Proctor, 661 F. Supp. 2d at 779 (finding claims factually unrelated
even though plaintiffs alleged that defendants subjected them to the same or similar
treatment); Catanzaro v. Michigan Dep’t of Corrections, No. 08-11173, 2009 WL
4250027, * 13 (E.D. Mich. Nov. 19, 2009) (adopting magistrate judge’s report finding
that plaintiffs were mis-joined where they raised different claims and their retaliation
claims had different factual predicates); Harris v. Spellman, 150 F.R.D. 130, 131-32
(N.D. Ill. 1993)(Permissive joinder was not available with respect to two inmates’ prePLRA § 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).
Finally, even if the claims were somehow related, there are “pervasive
impracticalities associated with multiple-plaintiff prisoner litigation, which militates
against permissive joinder even if it were otherwise allowed by Rule 20(a).” Proctor v.
Applegate, 661 F. Supp. 2d at 780 (citing Boretsky v. Corzine, No. 2008 WL 2512916, *
5 (D.N.J. June 23, 2008)). Several of the problems that arise from multiple plaintiff
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prisoner litigation include the “need for each plaintiff to sign every pleading, and the
consequent possibilities that documents may be changed as they are circulated, or that
prisoners may seek to compel prison authorities to permit them to gather to discuss the
joint litigation.” Id. (quoting Boretsky, at * 5). Allowing multiple prisoner-plaintiffs to
proceed in a single action “invites violations of Rule 11(a), which requires every pleading
to be signed by all pro se plaintiffs.” Proctor, 661 F. Supp. 2d at 780 (citing Ghashiyah v.
Frank, No. 2008 WL 680203, * 1 (E.D.Wis. March 10, 2008)). Multiple plaintiff
prisoner cases like these can also often lead to pleadings being filed on behalf of the other
plaintiffs without their consent. Id.
An additional problem with multi-plaintiff litigation in the prisoner context is that
“jail populations are notably transitory, making joint litigation difficult.” Id. (quoting
Boretsky, at *5); See also White v. Tennessee Bd. of Probation and Paroles, No. 2007 WL
1309402 (W.D.Tenn. May 3, 2007)(“[I]t is administratively impractical to permit five
inmates at three institutions to litigate their claims in a single action”). Other district
courts have also pointed to the “need for resolution of individualized questions of fact and
law surrounding the requirement for exhaustion of administrative remedies under under
42 U.S.C. § 1997e(a).” Proctor, 661 F. Supp. 2d at 780 (quoting Boretsky, at
*6)(additional citations omitted). Prisoners are simply “not in the same situation as
non-prisoner joint plaintiffs; prisoners’ circumstances make joint litigation exceptionally
difficult.” Id. (quoting Boretsky, at *6).
Misjoinder of parties is not normally sufficient to dismiss an action in its entirety,
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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 light of the various deficiencies and the fact that the lead plaintiff may be barred from
proceeding in forma pauperis because of prior dismissals under the three strikes provision
of the PLRA, this Court finds that the best course of action would be to dismiss the
complaint without prejudice; the individual plaintiffs may file complaints for themselves.
See e.g. Fuller v. Heyns, No. No. 2:12–12371, 2012 WL 2374222 (E.D. Mich. June 22,
2012).
ORDER
IT IS ORDERED that:
The civil rights complaint is DISMISSED WITHOUT PREJUDICE. The
plaintiffs may file individual complaints for themselves.

S/Victoria A. Roberts
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
Dated: May 4, 2017

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