Dunbar #129278 et al v. Rose

Filing 6

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOSEPH GREGORY DUNBAR et al.,
Plaintiffs,

Case No. 1:15-cv-881

v.

Honorable Robert Holmes Bell

YVONNE ROSE,
Defendant.
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OPINION
This is a civil rights action brought by 33 state prisoners pursuant to 42 U.S.C.
§ 1983. For the reasons set forth below, the Court will dismiss all of the Plaintiffs, except for Joseph
Gregory Dunbar. Plaintiff Dunbar will be required to file an amended complaint on the form
provided by the Court within twenty-eight days. The Court also will deny the motion to file a class
action (docket #1) and “Exparte Motion for Injunctive Relief, Motion for Evidentiary Hearing,
Motion to Waive Fees and Costs Temporarily” (docket #3).
Discussion
I.

Motion for Class Certification

The complaint includes a motion to file a class action (docket #1). For a case to
proceed as a class action, the court must be satisfied on a number of grounds, including the adequacy
of class representation. See FED. R. CIV. P. 23(a)(4). It is well established that pro se litigants are
inappropriate representatives of the interests of others. See Garrison v. Mich. Dep’t of Corr., 333
F. App’x 914, 919 (6th Cir. 2009) (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.

1975)); see also Dodson v. Wilkinson, 304 F. App’x 434, 438 (6th Cir. 2008); Ziegler v. Michigan,
59 F. App’x 622, 624 (6th Cir. 2003); Palasty v. Hawk, 15 F. App’x 197, 200 (6th Cir. 2001);
Howard v. Dougan, No. 99-2232, 2000 WL 876770, at *1 (6th Cir. June 23, 2000). Because
Plaintiffs are incarcerated pro se litigants, the Court finds that they are not appropriate
representatives of a class. Therefore, Plaintiffs’ motion for class certification will be denied.
II.

Misjoinder of Parties

Federal Rule of Civil Procedure 20(a)(1) allows the permissive joinder of plaintiffs
in a single action, 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). In considering whether joinder should be permitted, the Court is mindful that “the impulse
is toward entertaining the broadest possible scope of action consistent with fairness to the parties;
joinder of claims, parties and remedies is strongly encouraged.” United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 724 (1966). This impulse, however, does not provide a plaintiff or plaintiffs
free license to join multiple defendants into a single lawsuit where the claims against the defendants
are unrelated. See, e.g., Pruden v. SCI Camp Hill, 252 F. App’x 436, 437 (3d Cir. 2007) (per
curiam); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); Coughlin v. Rogers, 130 F.3d 1348,
1350 (9th Cir. 1997). Nor can multiple plaintiffs pass the two-part test of Rule 20(a)(1) where each
plaintiff provides a different factual background giving rise to their “mutual” cause of action.
Coughlin, 130 F.3d at 1350; Abdelkarim v. Gonzales, No. 06-14436, 2007 WL 1284924, at *4-5
(E.D. Mich. Apr. 30, 2007). The limitations of joining multiple plaintiffs and defendants in a single
lawsuit are often compounded where the plaintiffs are prisoners. Boretsky v. Corzine, No. 08-2265,
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2008 WL 2512916, at *5 (D. N.J. Jun. 23, 2008) (“Among the difficulties . . . are 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. These courts also have noted that jail populations are notably
transitory, making joint litigation difficult.”) (collecting cases).
Furthermore, prisoners may use misjoinder as a means of circumventing the filing fee
provisions of the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, which require a
prisoner to pay the full filing fee in installments.1 See 28 U.S.C. § 1915(b)(1); see also McGore v.
Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997); Hampton v. Hobbs, 106 F.3d 1281 (6th Cir.
1997). When a case is filed by more than one prisoner, the Plaintiffs share the fees and costs
proportionately. See Talley-Bey v. Knebl, 168 F.3d 884, 887 (6th Cir. 1999); In re Prison Litig.
Reform Act, 105 F.3d 1131, 1137 (6th Cir. 1997). Thus, multiple prisoners may file a single
complaint with unrelated claims in an attempt to pay a reduced fee. Likewise, a prisoner who is
barred from proceeding in forma pauperis under the three strikes provision set forth in § 1915(g),
may file a complaint with other improperly joined prisoner plaintiffs in order to reduce his portion
of the filing fee to an amount he can afford to pay, thereby frustrating the intent of the statute to curb
abusive prisoner litigation.
In this case, Plaintiffs assert violations of their First Amendment right of access to
the courts. Plaintiffs allege that the legal books in the Richard A. Handlon Correctional Facility have
been replaced by an electronic law library with four work stations. Prisoners are allowed access to

1

As of May 1, 2013, the filing fee for a civil action was increased from $350.00 to $400.00. However, if
the Court grants a pro se litigant leave to proceed in forma pauperis, the filing fee remains $350.00.

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the electronic law library no more than one hour per day, four times per week, which is inadequate.
Plaintiffs also claim that they have not been trained in how to use the computer system for legal
research. Plaintiffs further allege that due to limited capacity, a prisoner may wait up to three days
after making a request to be called out to the law library. Similarly, a prisoner may have to wait two
to three days to get legal copies, regardless of whether he has a court deadline to meet. In addition,
Plaintiffs contend that prisoners with GEDs, who do not qualify for assistance through the Legal
Writer Program, are not permitted to talk or pass notes in the library, and, thus, are effectively barred
from receiving assistance from other prisoners with greater legal experience and knowledge.
It is well established that prisoners have a constitutional right of access to the courts.
Bounds v. Smith, 430 U.S. 817, 821 (1977). The principal issue in Bounds was whether the states
must protect the right of access to the courts by providing law libraries or alternative sources of legal
information for prisoners. Id. at 817. The Court further noted that in addition to law libraries or
alternative sources of legal knowledge, the states must provide indigent inmates with “paper and pen
to draft legal documents, notarial services to authenticate them, and with stamps to mail them.” Id.
at 824-25. The right of access to the courts also prohibits prison officials from erecting barriers that
may impede the inmate’s access to the courts. See Knop v. Johnson, 977 F.2d 996, 1009 (6th Cir.
1992).
An indigent prisoner’s constitutional right to legal resources and materials is not,
however, without limit. In order to state a viable claim for interference with his access to the courts,
a plaintiff must show “actual injury.” Lewis v. Casey, 518 U.S. 343, 349 (1996); see also Talley-Bey
v. Knebl, 168 F.3d 884, 886 (6th Cir. 1999); Knop, 977 F.2d at 1000. In other words, a plaintiff must
plead and demonstrate that the shortcomings in the prison legal assistance program or lack of legal
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materials have hindered, or are presently hindering, his efforts to pursue a nonfrivolous legal claim.
Lewis, 518 U.S. at 351-53; see also Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). The
Supreme Court has strictly limited the types of cases for which there may be an actual injury:
Bounds does not guarantee inmates the wherewithal to transform themselves into
litigating engines capable of filing everything from shareholder derivative actions to
slip-and-fall claims. The tools it requires to be provided are those that the inmates
need in order to attack their sentences, directly or collaterally, and in order to
challenge the conditions of their confinement. Impairment of any other litigating
capacity is simply one of the incidental (and perfectly constitutional) consequences
of conviction and incarceration.
Lewis, 518 U.S. at 355. “Thus, a prisoner’s right to access the courts extends to direct appeals,
habeas corpus applications, and civil rights claims only.” Thaddeus-X v. Blatter, 175 F.3d 378, 391
(6th Cir. 1999) (en banc). Moreover, the underlying action must have asserted a non-frivolous claim.
Lewis, 518 U.S. at 353; accord Hadix v. Johnson, 182 F.3d 400, 405 (6th Cir. 1999) (Lewis changed
actual injury to include requirement that action be non-frivolous).
In addition, the Supreme Court squarely has held that “the underlying cause of
action . . . is an element that must be described in the complaint, just as much as allegations must
describe the official acts frustrating the litigation.” Christopher v. Harbury, 536 U.S. 403, 415
(2002) (citing Lewis, 518 U.S. at 353 & n.3). “Like any other element of an access claim, the
underlying cause of action and its lost remedy must be addressed by allegations in the complaint
sufficient to give fair notice to a defendant.” Id. at 416.
While Plaintiffs are asserting the same deficiencies in the law library, they cannot
seek relief jointly because each Plaintiff must specifically allege how the lack of legal resources or
assistance caused him to suffer actual injury to a pending or contemplated habeas corpus or civil
rights action. Moreover, because each Plaintiff’s claim of actual injury would be founded upon a

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unique set of facts and circumstances, they would not arise under the same transaction or occurrence,
and, thus, are improperly joined.
Under FED. R. CIV. P. 21, “[m]isjoinder of parties is not a ground for dismissing an
action.” Instead, Rule 21 provides two remedial options: (1) misjoined parties may be dropped on
such terms as are just; or (2) any claims against misjoined parties may be severed and proceeded with
separately. See DirecTV, Inc. v. Leto, 467 F.3d 842, 845 (3d Cir. 2006); Carney v. Treadeau, No.
07-CV-83, 2008 WL 485204, at *2 (W.D. Mich. Feb. 19, 2008), Coal. to Defend Affirmative Action
v. Regents of Univ. of Mich., 539 F. Supp. 2d 924, 940 (E.D. Mich. 2008); 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.”).
“Because a district court’s decision to remedy misjoinder by dropping and dismissing a party, rather
than severing the relevant claim, may have important and potentially adverse statute-of-limitations
consequences, the discretion delegated to the trial judge to dismiss under Rule 21 is restricted to
what is ‘just.’” DirecTV, 467 F.3d at 845.
At least three judicial circuits have interpreted “on such terms as are just” to mean
without “gratuitous harm to the parties.” Strandlund v. Hawley, 532 F.3d 741, 745 (8th Cir. 2008)
(quoting Elmore v. Henderson, 227 F.3d 1009, 1012 (7th Cir. 2000)); see also DirecTV, Inc., 467
F.3d at 845. Such gratuitous harm exists if the dismissed parties lose the ability to prosecute an
otherwise timely claim, such as where the applicable statute of limitations has lapsed, or the
dismissal is with prejudice. Strandlund, 532 F.3d at 746; DirecTV, 467 F.3d at 846-47; Michaels
Building Co., 848 F.2d at 682.

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In this case, Plaintiffs bring causes of action under 42 U .S.C. § 1983. For civil rights
suits filed in Michigan under § 1983, the statute of limitations is three years. See MICH. COMP. LAWS
§ 600.5805(10); Carroll v. Wilkerson, 782 F.2d 44 (6th Cir. 1986) (per curiam); Stafford v. Vaughn,
No. 97-2239, 1999 WL 96990, at *1 (6th Cir. Feb. 2, 1999). To the extent Plaintiffs provide dates
for their claims, their causes of action accrued less than three years ago. Furthermore, “Michigan
law provides for tolling of the limitations period while an earlier action was pending which was later
dismissed without prejudice.” Kalasho v. City of Eastpointe, 66 F. App’x 610, 611 (6th Cir. 2003).
Because the Court will dismiss Plaintiffs without prejudice under FED. R. CIV. P. 21, the time during
which the current suit was pending will thus toll the statute of limitations. As Plaintiffs will not
suffer gratuitous harm if this action is dismissed, the Court will exercise its discretion under Rule
21 and dismiss all Plaintiffs, except Plaintiff Dunbar, without prejudice to the institution of new,
separate lawsuits by the remaining Plaintiffs. See Coughlin, 130 F.3d at 1350 (“In such a case, the
court can generally dismiss all but the first named plaintiff without prejudice to the institution of
new, separate lawsuits by the dropped plaintiffs.”); Carney, 2008 WL 485204, at *3 (same).
III.

Amended Complaint

Plaintiff Dunbar will be required to file an amended complaint on the form provided
by the Court within twenty-eight days of this Opinion and Order. If Plaintiff wishes to proceed with
his action, he must carefully fill out the form and submit it to the Court. The Court will direct the
Clerk to send to Plaintiff a copy of the form complaint under 42 U.S.C. § 1983 for a civil action by
a person in state custody. The amended complaint will take the place of the original complaint, so
it must include all of the Defendants that Plaintiff Dunbar intends to sue and all of the claims that

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Plaintiff Dunbar intends to raise. The case number shown above must appear on the front page of
the amended complaint.
IV.

Motion for Injunctive Relief

In their ex parte motion for injunctive relief (docket #3), Plaintiffs ask the Court to
“restore our law books, and that [sic] be called over to the law library when we sign up to use the
library, that we have adequate amounts of time to do our research in the law library, that we be
allowed to assist each other in the law library, that a class be opened to teach us how to use the
computers for legal research in the law library.” (Exparte Mot., docket #3, PageID #16-17.) The
motion will be denied as moot with regard to the Plaintiffs being dismissed from this action without
prejudice. For the reasons set forth below, the motion also will be denied with regard to Plaintiff
Dunbar.
The issuance of preliminary injunctive relief is committed to the discretion of the
district court. See Ne. Ohio Coal. v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006); Nader v.
Blackwell, 230 F.3d 833, 834 (6th Cir. 2000). In exercising that discretion, a court must consider
whether plaintiff has established the following elements: (1) a strong or substantial likelihood of
success on the merits; (2) the likelihood of irreparable injury if the preliminary injunction does not
issue; (3) the absence of harm to other parties; and (4) the protection of the public interest by
issuance of the injunction. Id. These factors are not prerequisites to the grant or denial of injunctive
relief, but factors that must be “carefully balanced” by the district court in exercising its equitable
powers. Frisch’s Rest., Inc. v. Shoney’s, Inc., 759 F.2d 1261, 1263 (6th Cir. 1985); see also Ne.
Ohio Coal, 467 F.3d at 1009. Moreover, where a prison inmate seeks an order enjoining state prison
officials, the court is required to proceed with the utmost care and must recognize the unique nature
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of the prison setting. See Glover v. Johnson, 855 F.2d 277, 284 (6th Cir. 1988); Kendrick v. Bland,
740 F.2d 432 at 438 n.3, (6th Cir. 1984). The party seeking injunctive relief bears a heavy burden
of establishing that the extraordinary and drastic remedy sought is appropriate under the
circumstances. See Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir.
2002); Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978); see also O’Lone v. Estate of
Shabazz, 482 U.S. 342 (1986).
Under controlling Sixth Circuit authority, Plaintiff’s “initial burden” in demonstrating
entitlement to preliminary injunctive relief is a showing of a strong or substantial likelihood of
success on the merits of his section 1983 action. NAACP v. Mansfield, 866 F.2d 162, 167 (6th Cir.
1989). Plaintiff has not made such a showing. It is not at all clear from Plaintiff’s pro se complaint
that he has a substantial likelihood of success on his access to the courts claim. Although the Court
makes no final determination on this issue, it appears at this preliminary stage that Plaintiff has not
alleged an actual injury resulting from the alleged conditions in the law libary. Second, the presence
of irreparable harm is not evident. A plaintiff’s harm from the denial of a preliminary injunction is
irreparable only if it is not fully compensable by monetary damages. See Overstreet, 305 F.3d at
578. As set forth above, Plaintiff has not set forth specific facts showing an immediate, concrete and
irreparable harm in the absence of an injunction.
Finally, the interests of identifiable third parties and the public at large weigh against
an injunction. Any interference by the federal courts in the administration of state prisons is
necessarily disruptive. The public welfare therefore militates against the issuance of extraordinary
relief in the prison context, absent a sufficient showing of a violation of constitutional rights. See

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Glover, 855 F.2d at 286-87. That showing has not been made here. Accordingly, Plaintiff’s motion
for preliminary relief will be denied.
V.

Motion for Waiver of Fees and Costs

Plaintiffs also moved for temporary waiver of fees and costs (docket #3). As the only
remaining Plaintiff, Plaintiff Dunbar is required to pay the filing fee or to apply in the manner
required by law to proceed in forma pauperis. Under the provisions of the Prison Litigation Reform
Act of 1995, if a prisoner wishes to proceed in forma pauperis, the prisoner must file a certified copy
of a prisoner trust account statement and an affidavit of indigence. 28 U.S.C. § 1915(a)(2); McGore,
114 F.3d at 605. Plaintiff has failed to file the required prisoner trust account statement and affidavit
of indigence in order to proceed in forma pauperis. Consequently, Plaintiff’s motion for waiver of
fees and costs will be denied and the Court will enter a separate order regarding Plaintiff’s
deficiency.
Orders consistent with this Opinion will be entered.

Dated: October 19, 2015

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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