Bey #236321 v. Palmer, et al

Filing 7

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

CHRISTOPHER BEY,
Plaintiff,

Case No. 2:16-cv-173

v.

Honorable Gordon J. Quist

CARMEN PALMER et al.,
Defendants.
____________________________________/
OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation
Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), 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, Plaintiff’s action will be dismissed for failure to state
a claim and misjoinder.
Factual Allegations
Plaintiff Christopher Bey presently is incarcerated with the Michigan Department of
Corrections (MDOC) at the Alger Correctional Facility (LMF), though the actions about which he
complains also occurred while he was housed at the Michigan Reformatory (RMI). Plaintiff sues

MDOC Director Heidi E. Washington, RMI Warden Carmen Palmer, RMI Deputy Warden
(unknown) Schooley, LMF Warden C. Bauman, and Deputy Wardens A. Immel and S. Sprader.
Plaintiff’s complaint covers two distinct sets of allegations that occurred at two
different prisons. In the first set of allegations, Plaintiff complains that, while he was housed at
RMI, he was kept in detention for a period of six days without due process. He specifically alleges
that, following a conviction on a misconduct charge, he was sanctioned to 10 days’ placement in a
detention cell. Plaintiff began serving his sanction on October 27, 2015, and he should have been
released from detention on November 6, 2015. Nevertheless, Plaintiff remained in detention until
November 12, 2015. Plaintiff states that he asked two corrections officers to contact Defendant
Schooley to ask why he was being kept in detention beyond his 10-day sanction. He also alleges
that he wrote Defendant Palmer about his improper continued detention. Plaintiff argues that
Defendants Palmer and Schooley deprived him of his liberty and property interests without due
process by continuing his detention for the additional six days.
Plaintiff filed a grievance against Defendant Palmer on November 12, 2015,
complaining about his extended stay in detention. On December 16, 2015, after Plaintiff had been
transferred to LMF, Plaintiff received three Time Review and Disposition Forms signed by Palmer,
approving Plaintiff’s forfeiture of 85 days’ disciplinary credits. Plaintiff contends that Palmer’s
decision that Plaintiff would forfeit the disciplinary credits was not made until after Plaintiff filed
his grievance, and it therefore was retaliatory.
Plaintiff’s second set of allegations concerns his treatment at LMF. Upon his arrival
at LMF on November 23, 2015, Plaintiff was interviewed by Defendant Immel, who went through
his file page by page. Defendant Immel saw that the file contained two requests for protection, as
well as investigative reports associated with those requests. Immel asked Plaintiff if he had any
enemies, and Plaintiff responded that the Almighty Vice Lords were his enemies. Defendant Immel
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inquired whether “the contract hit[] still exist[ed]?” (Compl., ECF No. 1, PageID.6.) Plaintiff
responded that he did not know, but that he would like to avoid all contact with gang members,
especially members of the Vice Lords. Immel responded, “[T]his isn’t [B]urger King . . . have it
your way, you’re in prison for a punishment and you’re just going to have to get along with the gang
bangers . . . We have a lot of (STG) gang members here.” (Id.)1 Plaintiff was placed in a cell with
prisoner Boler, only to learn that Boler was a gang member. On November 27, 2015, prisoner Boler
attacked Plaintiff, causing severe injuries to Plaintiff’s face and head.
Plaintiff alleges that Defendant Immel was deliberately indifferent to Plaintiff’s risk
of being assaulted when Immel placed Plaintiff in a cell with a known violent STG gang member,
whom Immel knew to be a member of the Almighty Vice Lords Nation. Plaintiff also claims that
Defendant Sprader, by approving Plaintiff’s placement with Boler without reviewing Plaintiff’s file,
was also deliberately indifferent to the risk of assault. In addition, Plaintiff asserts that Defendants
Washington and Bauman knew that STG members and violent prisoners pose a threat to nonviolent
prisoners like Plaintiff, but they fail to segregate violent prisoners from nonviolent prisoners.
Plaintiff alleges that the failure to segregate STG members constitutes deliberate indifference.
Discussion
I.

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

1

The acronym “STG” stands for Security Threat Group. See MICH. DEP’T OF CORR., Policy Directive
04.04.113. “A STG is a group of prisoners designated by the Director as possessing common characteristics which
distinguish themselves from other prisoners or groups of prisoners and which, as an entity, pose a threat to staff or other
prisoners or to the custody, safety and security of the facility.” Id. ¶ B.

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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 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); Dominguez v.
Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). 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).
A.

Due Process

In his first set of allegations, Plaintiff claims that Defendants Palmer, Washington
and Schooley violated his right to due process when they allowed him to be kept in detention for an
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additional six days beyond his sanction period. “The Fourteenth Amendment protects an individual
from deprivation of life, liberty or property, without due process of law.” Bazetta v. McGinnis, 430
F.3d 795, 801 (6th Cir. 2005). To establish a Fourteenth Amendment procedural due process
violation, a plaintiff must show that one of these interests is at stake. Wilkinson v. Austin, 545 U.S.
209, 221 (2005). Analysis of a procedural due process claim involves two steps: “[T]he first asks
whether there exists a liberty or property interest which has been interfered with by the State; the
second examines whether the procedures attendant upon that deprivation were constitutionally
sufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989). 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 statecreated right creates 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 the
sanction “will inevitably affect the duration of his sentence” or when a deprivation imposes an
“atypical and significant hardship on the inmate in 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). The Sandin 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.
Here, Plaintiff clearly has failed to suggest that his detention at RMI was more than
ordinary administrative segregation. In addition, he was only kept in detention for an extra six days
– far less than the 30 days found not to implicate due process by the Sandin Court. As a result,
Plaintiff fails to allege that he had a liberty interest protected by due process.
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B.

Retaliation

Plaintiff next alleges that Defendant Palmer retaliated against him for filing a
grievance. Retaliation based upon a prisoner’s exercise of his or her constitutional rights violates
the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order
to set forth a First Amendment retaliation claim, a plaintiff must establish that: (1) he was engaged
in protected conduct; (2) an adverse action was taken against him that would deter a person of
ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, at least
in part, by the protected conduct. Id. Moreover, a plaintiff must be able to prove that the exercise
of the protected right was a substantial or motivating factor in the defendant’s alleged retaliatory
conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
The filing of a prison grievance is constitutionally protected conduct for which a
prisoner cannot be subjected to retaliation. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir.
2001); Hall v. Nusholtz, No. 99-2442, 2000 WL 1679458, at *2 (6th Cir. Nov. 1, 2000); Burton v.
Rowley, No. 00-1144, 2000 WL 1679463, at *2 (6th Cir. Nov. 1, 2000). Moreover, the Court
assumes that a decision to approve forfeiture of disciplinary credits would amount to adverse action
sufficient to support a retaliation claim.
Plaintiff’s retaliation claim, however, fails at the third step. It is well recognized that
“retaliation” is easy to allege and that it can seldom be demonstrated by direct evidence. See
Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005); Murphy v. Lane, 833 F.2d 106, 108 (7th
Cir. 1987); Vega v. DeRobertis, 598 F. Supp. 501, 506 (C.D. Ill. 1984), aff’d, 774 F.2d 1167 (7th
Cir. 1985). “[A]lleging merely the ultimate fact of retaliation is insufficient.” Murphy, 833 F.2d
at 108. “[C]onclusory allegations of retaliatory motive ‘unsupported by material facts will not be
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sufficient to state . . . a claim under § 1983.’” Harbin-Bey, 420 F.3d at 580 (quoting Gutierrez v.
Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987)); see also Iqbal, 556 U.S. at 678 (“Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.”); Skinner v. Bolden, 89 F. App’x 579, 579-80 (6th Cir. 2004) (without more, conclusory
allegations of temporal proximity are not sufficient to show a retaliatory motive). Moreover, while
in limited circumstances, temporal proximity “may be ‘significant enough to constitute indirect
evidence of a causal connection so as to create an inference of retaliatory motive,’” Muhammad v.
Close, 379 F.3d 413, 417-18 (6th Cir. 2004) (quoting DiCarlo v. Potter, 358 F.3d 408, 422 (6th Cir.
2004)), “[c]onclusory allegations of temporal proximity are not sufficient to show a retaliatory
motive.” Skinner v. Bolden, 89 F. App’x 579, 580 (6th Cir. 2004). Plaintiff’s allegation that
Defendant Palmer retaliated by upholding the forfeiture of disciplinary credits a full month after
Plaintiff filed a grievance and weeks after Plaintiff had been transferred to another prison is patently
conclusory and unsupported by any specific allegations.
II.

Misjoinder

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.”

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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), 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 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)).
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
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being filed in the federal courts. See Riley v. Kurtz, 361 F.3d 906, 917 (6th Cir. 2004). 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 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 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); see also Brown v. Blaine, 185 F. 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); Patton v. Jefferson Correctional Center, 136 F.3d 458, 464 (5th
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Cir. 1998); Shephard v. Edwards, 2001 WL 1681145, * 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). 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.
Plaintiff’s first set of allegations concerns events at RMI involving only two
Defendants, Palmer and Schooley. Plaintiff’s other allegations concern a wholly separate set of
events that occurred at another institution. The second set of allegations is neither transactionally
related to the first set of allegations, nor is either Palmer or Schooley a Defendant in relation to the
second set of allegations. As a consequence, Plaintiff’s claims against the remaining Defendants
are misjoined in this action.
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 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)
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(“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.
In this case, Plaintiff brings civil rights claims 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).
All of the actions about which Plaintiff complains occurred in late 2015, well within
the three-year period of limitations. As a result, dismissal of the claims arising at LMF would not
create a risk that they would be time-barred in a future action. Plaintiff therefore will not suffer
gratuitous harm if the improperly joined claims and Defendants are dismissed. Accordingly, the
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Court will exercise its discretion under Rule 21 and dismiss all Defendants other than Defendants
Palmer and Schooley from the action, without prejudice to the institution of new, separate lawsuits
by Plaintiff against those Defendants. 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). Plaintiff’s
complaint against Defendants Palmer and Schooley will be dismissed with prejudice for failure to
state a claim.
In other circumstances, the Sixth Circuit has recognized that dismissal in part with
prejudice and in part without prejudice may nevertheless count as a strike. See Pointer v. Wilkinson,
502 F.3d 369, 377 (6th Cir. 2007) (holding “that where a complaint is dismissed in part without
prejudice for failure to exhaust administrative remedies and in part with prejudice because ‘it is
frivolous, malicious, or fails to state a claim upon which relief may be granted,’ the dismissal should
be counted as a strike under 28 U.S.C. § 1915(g).”) As earlier discussed, misjoinder to avoid the
purposes of the three-strikes rule is of particular concern following adoption of the PLRA. George,
507 F.3d at 607; Brown, 185 F. App’x at 168-69; Patton, 136 F.3d at 464; Shephard, 2001 WL
1681145, * 1; Scott, 107 F. Supp. 2d at 711. Where, as here, a set of claims and Defendants have
been improperly joined to meritless claims, arguably in an attempt to avoid the action being counted
as a strike,2 dismissal should be counted as a strike under § 1915(g).
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s claims against Defendants Palmer and Schooley will be dismissed for
2

Plaintiff already has three strikes, causing him to allege that he is in imminent danger of serious physical injury
in relation to the misjoined claims. See Bey v. Birkett et al., No. 2:11-cv-13625 (E.D. Mich. Sept. 24, 2012); Bey v.
Luetzow et al., No. 2:07-cv-253 (W.D. Mich. June 30, 2008); Bey v. Gundy et al., No. 1:03-cv-193 (W.D. Mich. Mar.
31, 2003).

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failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
Plaintiff’s claims against Defendants Washington, Bauman, Immel and Sprader will be dismissed
without prejudice for improper joinder.
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). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. 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).
A Judgment consistent with this Opinion will be entered.

Dated: November 3, 2016

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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