Boone #656933 v. Washington et al

Filing 7

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______

KEVIN KENDELL BOONE,
Plaintiff,
v.

Case No. 1:20-cv-556
Honorable Paul L. Maloney

HEIDI E. WASHINGTON et al.,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Under Rule 21 of the Federal Rules of Civil Procedure, a court may at any time, with or without
motion, add or drop a party for misjoinder or nonjoinder. Fed. R. Civ. P. 21. Further, under the
Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is
required to dismiss any prisoner action brought under federal law if the complaint is frivolous,
malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a
defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The
Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520
(1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or wholly
incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the Court
will drop Defendants Davids, Demps, Novak, Yuhas, Maranka, and Bledsoe because they are
misjoined. The Court will also dismiss Plaintiff’s complaint against the remaining defendant,
Defendant Washington, for failure to state a claim. Finally, the Court will deny Plaintiff’s pending
motions.

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Discussion
I.

Factual allegations
Plaintiff is presently incarcerated with the Michigan Department of Corrections

(MDOC) at the Ionia Correctional Facility (ICF) in Ionia, Ionia County, Michigan. The events
about which he complains occurred at that facility and the Marquette Branch Prison (MBP) in
Marquette, Marquette County, Michigan. Plaintiff sues MDOC Director Heidi Washington as well
as the following ICF staff: Warden John Davids, Hearing Investigator Melissa Demps, Librarian
Unknown Novak, Grievance Coordinator Adam Yuhas, Unit Chief of Mental Health David
Maranka, and Sergeant Unknown Bledsoe.
Plaintiff alleges that, on February 4, 2019, he was accused of assaulting a prison
employee at MBP. He was placed in administrative segregation pending a hearing. While in
segregation, Plaintiff requested legal materials to assist with his hearing, but he alleges that none
were provided. Plaintiff states that he “was believed to be guilty” on February 8, 2019, and
classified to administrative segregation as a result on February 19, 2019, “without due process.”
(Compl., ECF No. 1, PageID.5.)
MDOC transferred Plaintiff to an administrative segregation unit at ICF on March
19, 2019. The remainder of Plaintiff’s complaint alleges a series of discrete events from March
2019 through late March 2020. These events include defendants taking the following actions:
rejecting Plaintiff’s requests for legal materials and legal assistance from the law library;
threatening problems if Plaintiff pursued further litigation; planting a weapon to place Plaintiff
back in administrative segregation; failing to investigate and falsifying a statement so that Plaintiff
would be found guilty of misconduct; and agreeing to place Plaintiff back in administrative
segregation despite risks to his psychological health.

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Plaintiff seeks declaratory and injunctive relief, compensatory and punitive
damages, costs, and fees.
II.

Misjoinder
At this juncture, the Court must review whether Plaintiff’s claims are properly

joined. Plaintiff has joined seven Defendants in this action connecting a series of discrete events
occurring at two different prisons during the period from February 2019 to March 2020.
A.

Improper Joinder
Federal Rule of Civil Procedure 20(a) limits the joinder of parties in single lawsuit,

whereas Federal Rule of Civil Procedure 18(a) limits the joinder of claims. 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.” 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.”
Courts have recognized that, where multiple parties are named, as in this case, the
analysis under Rule 20 precedes that under 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.
7 Charles Allen Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice & Procedure Civil
§ 1655 (3d ed. 2001), quoted in Proctor v. Applegate, 661 F. Supp. 2d 743, 778 (E.D. Mich. 2009),
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and Garcia v. Munoz, No. 08-1648, 2007 WL 2064476, at *3 (D.N.J. May 14, 2008); see also
Neitzke v. Williams, 490 U.S. 319, 328 (1989) (joinder of defendants is not permitted by Rule 20
unless both commonality and same transaction requirements are satisfied).
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. When determining if civil rights claims arise from the same transaction
or occurrence, a court may consider a variety of factors, including, “the time period during which
the alleged acts occurred; whether the acts . . . are related; whether more than one act . . . is alleged;
whether the same supervisors were involved, [sic] and whether the defendants were at different
geographical locations.” Id. (quoting Nali v. Mich. Dep’t of Corr., No. 07-10831, 2007 WL
4465247, at *3 (E.D. Mich. Dec. 18, 2007)).
Permitting the improper joinder in a prisoner civil rights action also undermines the
purpose of the 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)
(discussing purpose of PLRA). Under the 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

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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 of 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 produce[s]
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); see also Brown v. Blaine, 185 F. App’x 166,
168-69 (3d 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); Patton v. Jefferson Corr. Ctr., 136 F.3d 458, 464 (5th Cir. 1998)
(discouraging “creative joinder of actions” by prisoners attempting to circumvent the PLRA’s
three-strikes provision); Shephard v. Edwards, No. C2-01-563, 2001 WL 1681145, at *1 (S.D.
Ohio Aug. 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).
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Thus, 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, malicious, or fail to state a claim.
Therefore, the Court will look to Plaintiff’s first listed Defendant and the earliest
set of clear factual allegations against that Defendant to determine which portion of the action
should be considered related. Defendant Washington is the first identified Defendant in the caption
of the complaint (ECF No. 1, PageID.1) and the list of Defendants (id., PageID.2-3). Plaintiff’s
earliest allegations assert that, after he was accused of assaulting an MBP employee, Plaintiff was
classified to administrative segregation at MBP without due process.

Because Plaintiff’s

allegations involve conduct at MBP, and all Defendants except for Defendant Washington are staff
at ICF, it is clear that no other Defendant was involved in classifying Plaintiff to administrative
segregation at MBP. Thus, Plaintiff’s allegations connect no other Defendant to the first
transaction or occurrence involving Plaintiff and Defendant Washington. As a result, none of the
other Defendants is transactionally related to Plaintiff’s first claim involving Defendant
Washington. Moreover, it is clear that no question of law or fact is common to all Defendants.
See Fed. R. Civ. P. 20(a)(2)(B).
B.

Remedy
Under Rule 21 of the Federal Rules of Civil Procedure, “[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 Grupo Dataflux v. Atlas Global Grp.,
L.P., 541 U.S. 567, 572-73 (2004) (“By now, ‘it is well settled that Rule 21 invests district courts
with authority to allow a dispensable nondiverse party to be dropped at any time . . . .’”); DirecTV,
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Inc. v. Leto, 467 F.3d 842, 845 (3d Cir. 2006); Carney v. Treadeau, No. 2:07-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) (“[D]ismissal of claims against misjoined parties is
appropriate.”). “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, 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
Bldg. Co., 848 F.2d at 682.
In this case, Plaintiff brings 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). 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).

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All of Plaintiff’s allegations against the misjoined Defendants appear to have
occurred since March 2019, well within the three-year period of limitations. Those claims are not
at risk of being time-barred. Plaintiff therefore will not suffer gratuitous harm if the improperly
joined Defendants are dismissed. Accordingly, the Court will exercise its discretion under Rule
21 and dismiss the remaining Defendants from the action, without prejudice to the institution of
new, separate lawsuits by Plaintiff against those Defendants.1 See Coughlin v. Rogers, 130 F.3d
1348, 1350 (9th Cir. 1997) (“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.

Failure to state a claim
A complaint may be dismissed for failure to state a claim if it fails “‘to give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). The court must determine whether the complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
679. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it

1

As fully discussed in this opinion, Plaintiff is cautioned that he must limit all future actions to Defendants and claims
that are transactionally related to one another. Not all of the dismissed claims and Defendants would be properly
brought in a single new action.

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asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P.
8(a)(2)); see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the
Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on initial review under
28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was committed
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to
identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271
(1994).
IV.

Due Process
Plaintiff asserts that he was classified to administrative segregation on February 19,

2019, without due process.
The Supreme Court long has held that the Due Process Clause does not protect
every change in the conditions of confinement having an impact on a prisoner. See Meachum v.
Fano, 427 U.S. 215, 225 (1976). In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Court set
forth the standard for determining when a prisoner’s loss of liberty implicates a federally
cognizable liberty interest protected by the Due Process Clause. According to the Sandin Court, a
prisoner is entitled to the protections of due process only when a deprivation “will inevitably affect
the duration of his sentence” or imposes an “atypical and significant hardship on the inmate in
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relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 486-87; see also Jones v.
Baker, 155 F.3d 810, 812 (6th Cir. 1998); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir.
1995).
Confinement in administrative segregation “is the sort of confinement that inmates
should reasonably anticipate receiving at some point in their incarceration.” Hewitt v. Helms, 459
U.S. 460, 468 (1983).

Thus, it is considered atypical and significant only in “extreme

circumstances.” Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010). Generally, courts will
consider the nature and duration of a stay in segregation to determine whether it imposes an
“atypical and significant hardship.” Harden-Bey v. Rutter, 524 F.3d 789, 794 (6th. Cir. 2008).
In Sandin, the Supreme Court concluded that the segregation at issue in that case
(disciplinary segregation for 30 days) did not impose an atypical and significant hardship. Sandin,
515 U.S. at 484. Similarly, the Sixth Circuit has held that mere placement in administrative
segregation, and placement for a relatively short period of time, do not require the protections of
due process. Rimmer-Bey, 62 F.3d at 790-91; see Joseph v. Curtin, 410 F. App’x 865, 868
(6th Cir. 2010) (61 days in segregation is not atypical and significant). The Sixth Circuit has also
held, in specific circumstances, that confinement in segregation for a relatively long period of time
does not implicate a liberty interest. See, e.g., Baker, 155 F.3d at 812-23 (two years of segregation
while the inmate was investigated for the murder of a prison guard in a riot); Mackey v. Dyke, 111
F.3d 460 (6th Cir. 1997) (one year of segregation following convictions for possession of illegal
contraband and assault, including a 117-day delay in reclassification due to prison crowding). But
cf. Selby v. Caruso, 734 F.3d 554, 559 (6th Cir. 2013) (13 years of segregation implicates a liberty
interest); Harden-Bey, 524 F.3d at 795 (remanding to the district court to consider whether the
plaintiff’s allegedly “indefinite” period of segregation, i.e., three years without an explanation

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from prison officials, implicates a liberty interest); Harris v. Caruso, 465 F. App’x 481, 484 (6th
Cir. 2012) (eight years of segregation implicates a liberty interest).
Even where a liberty interest is shown, the due process claim “is not complete
unless and until the State fails to provide due process.” Zinermon v. Burch, 494 U.S. 113, 126
(1990). The Supreme Court has indicated that “[p]rison officials must engage in some sort of
periodic review of the confinement of . . . inmates [in segregation].” Hewitt, 459 U.S. at 477 n.9.
“This review will not necessarily require that prison officials permit the submission of any
additional evidence or statements.” Id. However, the decision to continue confinement must be
supported by “some evidence.” Superintendent v. Hill, 472 U.S. 445, 454 (1985).

“This

requirement balances the procedural rights of prisoner against the need of prison officials to have
freedom to operate their facilities on a day-to-day basis.” Harris, 465 F. App’x at 484. In short,
where an inmate’s confinement in segregation implicates a liberty interest, he is entitled to a
“periodic review of his confinement, supported by some evidence or indicia of reliability.” Id. at
485; see also Selby, 734 F.3d at 559-60 (holding that the mere formality of holding reviews is not
sufficient; whether a given process is meaningful and adequate is a question of fact).
Here, Plaintiff was placed in administrative segregation at MBP while he was
investigated for assaulting a corrections officer.
administrative segregation unit at ICF.

After 44 days he was transferred to an

In total, between the two prison, Plaintiff served

approximately 210 days—about 7 months—in administrative segregation following his hearing
related to the assault charge.
The Court cannot find that Plaintiff’s seven-month classification to administrative
segregation implicated a liberty interest. To be sure, Plaintiff faced a restrictive setting while in
administrative segregation for seven months. However, the time Plaintiff spent in administrative

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segregation is far shorter than the periods spent by prisoners in Baker (two years) and Mackey (one
year). The longer confinements in Baker and Mackey did not implicate liberty interests, therefore
Plaintiff has not satisfied his burden to demonstrate that his shorter confinement implicated a
liberty interest. Thus, without implicating a liberty interest, Plaintiff has not established that his
confinement in administrative segregation afforded him protections of the Due Process Clause.
Accordingly, the Court will dismiss Plaintiff’s due process claim.
V.

Vague and Conclusory Allegations
Plaintiff’s only remaining allegations against Defendant Washington are that she

“violated Plaintiff[’s] First, Fifth, Eighth, and Fourteenth Amendment[]” rights because she
“created policies, customs, or encouraged the illegal acts stated in this complaint.” (Compl., ECF
No. 1, PageID.22.)
While a complaint need not contain detailed factual allegations, a plaintiff’s
allegations must include more than labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). The court must determine whether the complaint contains “enough facts to state
a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. The court need not accept
“threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements . . . .” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct, the complaint
has alleged – but it has not ‘show[n]’ – that the pleader is entitled to relief.” Id. at 679 (quoting
Fed. R. Civ. P. 8(a)(2)).
Plaintiff’s allegations are merely conclusions. He fails to identify how any policy
set by Defendant Washington infringes on Plaintiff’s constitutional rights. Likewise, Plaintiff has
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not identified any custom that Defendant Washington created that has infringed Plaintiff’s
Constitutional rights. Finally, Plaintiff has not alleged any facts indicating that Defendant
Washington in any way encouraged any illegal or unconstitutional acts. In short, Plaintiff’s
conclusory statements do not contain “enough facts to state a claim to relief that is plausible on its
face.” See Twombly, 550 U.S. at 570. Accordingly, the Court will dismiss any remaining claims
against her.
VI.

Pending Motions
Plaintiff has also filed two motions that are currently pending before the Court.
In his first motion, Plaintiff asks for reconsideration of the Court’s earlier order

granting him leave to proceed with pauper status but requiring an initial partial filing fee. Plaintiff
asserts that he is indigent and does not have the funds to pay the $3.33 initial filing fee. The Court
notes that on July 13, 2020, Plaintiff paid the $3.33 initial filing fee. In light of the payment, the
Court will deny the Plaintiff’s motion as moot.
In his second motion, Plaintiff requests the appointment of counsel. Indigent
parties in civil cases have no constitutional right to a court-appointed attorney. Abdur-Rahman v.
Mich. Dep’t of Corr., 65 F.3d 489, 492 (6th Cir. 1995); Lavado v. Keohane, 992 F.2d 601, 604-05
(6th Cir. 1993). The Court may, however, request an attorney to serve as counsel, in the Court’s
discretion. Abdur-Rahman, 65 F.3d at 492; Lavado, 992 F.2d at 604-05; see Mallard v. U.S. Dist.
Court, 490 U.S. 296 (1989). Appointment of counsel is a privilege that is justified only in
exceptional circumstances. In determining whether to exercise its discretion, the Court should
consider the complexity of the issues, the procedural posture of the case, and Plaintiff’s apparent
ability to prosecute the action without the help of counsel. See Lavado, 992 F.2d at 606. Prior to
issuing its opinion, the Court carefully considered these factors and determined that the assistance

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of counsel did not appear necessary to the proper presentation of Plaintiff’s position. Thus, the
Court will deny Plaintiff’s request for appointment of counsel.
Conclusion
Having conducted the review under Federal Rule of Civil Procedure 21, the Court
will drop Plaintiff’s claims against Defendants Davids, Demps, Novak, Yuhas, Maranka, and
Bledsoe because they are misjoined. Further, having conducted the review required by the Prison
Litigation Reform Act, the Court determines that Plaintiff’s complaint will be dismissed for failure
to state a claim, under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The
Court must next decide whether an appeal of this action would be in good faith within the meaning
of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997).
Although the Court concludes that Plaintiff’s claims are properly dismissed, the Court does not
conclude that any issue Plaintiff might raise on appeal would be frivolous. Coppedge v. United
States, 369 U.S. 438, 445 (1962). Accordingly, the Court does not certify that an appeal would
not be taken in good faith. Should Plaintiff appeal this decision, the Court will assess the $505.00
appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless Plaintiff is
barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g). If he is
barred, he will be required to pay the $505.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
An order and judgment consistent with this opinion will be entered.

Dated:

September 10, 2020

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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