Ewing v. Wallace et al
MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that plaintiff's motion for change of judge [Doc. #21] is DENIED without prejudice. IT IS FURTHER ORDERED that plaintiff's motion to submit probative evidence [Doc. #25] is DENIED without prejudic e.IT IS FURTHER ORDERED that plaintiff's motion judicial oversight atSECC [Doc. #26] is DENIED without prejudice. IT IS FURTHER ORDERED that plaintiff's motion for change of venue [Doc. #27] is DENIED without prejudice.IT IS FURTHER ORDERED that plaintiff's motion to intervene in his prisoner account [Doc. #28] is DENIED without prejudice. Signed by District Judge Stephen N. Limbaugh, Jr on 2/6/14. (MRS) (Main Document 30 replaced on 2/6/2014) (MRS).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JERMAINE S. EWING,
IAN WALLACE, et al.,
No. 1:13CV71 LMB
MEMORANDUM AND ORDER
This matter is before the Court upon a myriad of motions filed by plaintiff.
The Court will review each of plaintiff’s motions in turn. Each of plaintiff’s
motions shall be denied, without prejudice.
Plaintiff’s Motion for Joinder
In his motion for joinder, plaintiff seeks to add claims relating to a
September 2013 incident at SECC to his amended complaint. His claims center
around an event that started with a medical issue that allegedly occurred on or
about September 27, 2013 and later evolved to include correctional officers
Spitzer, Kizer, Kline, Koch, Hancock and a nurse named Margaret Knox. Plaintiff
claims appear to concern both deliberate indifference to his medical needs on that
date, as well as an excessive force claim under the Eighth Amendment.
Rule 18(a) of the Federal Rules of Civil Procedure states:
A party asserting a claim to relief as an original claim,
counterclaim, cross-claim, or third-party claim, may join,
either as independent or as alternate claims, as many
claims, legal, equitable, or maritime, as the party has
against an opposing party.
As such, multiple claims against a single party are valid. George v. Smith, 507
F.3d 605, 607 (7th Cir. 2007). However, plaintiff is not attempting to join claims
relating to claims currently before this Court in his amended complaint.
Instead, plaintiff’s motion presents a situation where he seeks to join new,
multiple claims against, not one, but six new defendants to an action wherein he
has already made claims against twenty-five (25) other defendants. Indeed, it
appears that plaintiff is attempting to cram almost every claim he might have ever
had against every correctional officer he has come into contact with at SECC into
one lawsuit. Such pleading practices are not allowed, especially in prisoner
actions where there could be an incentive to avoid paying separate filing fees. See
id. (district court should question joinder of defendants and claims in prisoner
cases). Federal Rule of Civil Procedure 20(a)(2) is controlling and provides:
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.
Thus, a plaintiff cannot normally seek to join in one lawsuit a multitude of claims
against a host of different defendants, relating to events arising out of a series of
different occurrences or transactions. In other words, “Claim A against Defendant
1 should not be joined with unrelated Claim B against Defendant 2.” George v.
Smith, 507 F.3d 605, 607 (7th Cir. 2007). "Unrelated claims against different
defendants belong in different suits, . . . [in part] 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." Id.
Accordingly, plaintiff’s motion for joinder will be denied. If plaintiff
wishes to pursue the claims against the defendants outlined in his motion for
joinder, he will have to file an entirely new action with this Court.
Motion for Change of Judge
Plaintiff has submitted a motion for “change of judge pursuant to rule
51.05.” This statement makes up the entirety of his motion before the Court. In
other words, he has not provided any discussion or factual basis for a “change of
judge” in this action.
It appears that plaintiff is attempting to use a Missouri State Rule of
Procedure in federal court. This is not allowed. As he has not presented any
proper grounds to seek a new judge in this Court, his motion will be summarily
Motion to Admit Probative Evidence
In his “motion to admit probative evidence,” plaintiff seeks to supplement
his amended complaint with a “grievance appeal response” and a declaration from
plaintiff allegedly “describing the deliberate indifference” of Dwayne Kemper. As
plaintiff has been told in a prior Memorandum and Order, the Court does not
accept amendments by interlineation, and he cannot use “motions to submit
evidence” as a guise to supplement his pleading.
Additionally, the Court does not allow discovery materials to be filed with
the Court. See Local Rule 26-3.02. As such, plaintiff’s motion to “admit
probative evidence” will be denied.
Request for Change of Division
Plaintiff requests a change of “division” from the Southeastern Division of
this Court to the Eastern Division of this Court. As plaintiff is currently
incarcerated in the Southeastern Division of the Court, his complaint was filed in
that division, located in Cape Girardeau, Missouri.
Local Rule 3-2.07 addresses which division each case is assigned to.
Pursuant to Local Rule 3-2.07(B)(2), “If at least two of the defendants reside in
different divisions, such action shall be filed in any division in which one or more
of the defendants reside, or where the claim for relief arose.”
Plaintiff has named twenty-five (25) persons as defendants in this action.
Thus, this is a “multiple defendant action” under the Local Rule. Plaintiff is
correct in stating that at least two of the defendants reside in different divisions of
this Court. Thus, the Court has determined that the case should be filed where the
claim for relief arose.
Plaintiff’s claims arose in the Southeastern Division of this Court, at SECC,
in Charleston, Missouri. Plaintiff has not made any factual arguments as to why
the case should be moved to a different division in this Court. As such, his motion
to change the division of this matter will be denied.
Request for Court Intervention in Prisoner Account
Plaintiff motions for Court intervention in MDOC’s removal of court fees
from his prisoner account. He claims, in a general manner, that MDOC is
violating the law by “forwarding funds from plaintiff’s account that do not exceed
Plaintiff has not demonstrated such behavior to this Court. In fact, the
Court has reviewed the last prisoner account statement submitted by plaintiff in
this case and finds no merit in his contention. As a result, plaintiff’s motion for
intervention will be denied.
Motion for Judicial Oversight at SECC
In his request for “judicial oversight,” plaintiff seeks what appears to be a
mandatory injunction from this Court overseeing the “Suicide Intervention
Practices” at SECC. As plaintiff was told in the Court’s August 26, 2013
Memorandum and Order, if he intends to seek a restraining order or injunction in
this matter, he must properly brief the matter under the standards set forth in
Dataphase Sys. v. CL Sys., 640 F.2d 109, 113-14 (8th Cir. 1981). However, until
then, his broad and conclusory request that the Court simply “look into” the
allegations in plaintiff’s complaint, by way of a motion before this Court, must be
denied at this time.
IT IS HEREBY ORDERED that plaintiff’s motion for change of judge
[Doc. #21] is DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion for joinder [Doc. #23]
is DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion to submit probative
evidence [Doc. #25] is DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion judicial oversight at
SECC [Doc. #26] is DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion for change of venue
[Doc. #27] is DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion to intervene in his
prisoner account [Doc. #28] is DENIED without prejudice.
Dated this 6th day of February, 2014.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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