Harker v. Jordan et al
MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Jeffrey A. Harker, 6 MOTION to Appoint Counsel filed by Plaintiff Jeffrey A. Harker. IT IS HEREBY ORDERED that plaintiff=s m otion to proceed in forma pauperis [Doc. #2] is GRANTED.IT IS FURTHER ORDERED that plaintiff's motions for leave to add party-plaintiffs [Docs. #5, #10, #11, and #12] are DENIED. IT IS FURTHER ORDERED that plaintiff's motion for appointment ofcounsel [Doc. #6] is DENIED, without prejudice.IT IS FURTHER ORDERED that plaintiff shall submit an amendedcomplaint, in accordance with the instructions set forth in this Memorandum andOrder, no later than thirty (30) days from the date of this M emorandum and Order. Plaintiff is advised that his failure to comply with this Order will result of the dismissal of this action, without prejudice and without further notice to him. IT IS FURTHER ORDERED that the Court shall mail to plaintiff three blank form complaints for the filing of a prisoner civil rights complaint. Plaintiff may request additional forms from the Clerk, as needed.( Response to Court due by 6/9/2014.) Signed by District Judge Audrey G. Fleissig on 5/9/14. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JEFFREY A. HARKER,
JOHN JORDAN, et al.,
MEMORANDUM AND ORDER
This matter is before the Court on the motion of Jeffrey Harker (registration
no. N/A), an inmate at the Cape Girardeau County Jail, for leave to commence this
action without payment of the required filing fee [Doc. #2]. For the reasons stated
below, the Court finds that plaintiff does not have sufficient funds to pay any portion
of the filing fee, and therefore, an initial partial filing fee will not be assessed at this
time. See 28 U.S.C. ' 1915(b)(1).
Additionally, plaintiff has sent the Clerk of Court four letters, requesting to
add to this case over one hundred additional plaintiffs, who appear to be fellow
inmates at the Cape Girardeau County Jail [Docs. #5, #10, #11, and #12]. The
Court will liberally construe the letters as motions for leave to add party-plaintiffs,
which will be denied. Multiple prisoners may not join together in a single lawsuit
under Rule 20 of the Federal Rules of Civil Procedure. Georgeoff v. Barnes,
2:09CV14 ERW, 2009 WL 1405497 (E.D. Mo. 2009); Jones v. Abby, 2009 WL
2169894 (E.D. Mo. 2009).1
Furthermore, the Court will order plaintiff to file an amended complaint and
will deny, without prejudice, his motion for appointment of counsel.
28 U.S.C. ' 1915(b)(1)
Pursuant to 28 U.S.C. ' 1915(b)(1), a prisoner bringing a civil action in forma
pauperis is required to pay the full amount of the filing fee. If the prisoner has
insufficient funds in his or her prison account to pay the entire fee, the Court must
assess and, when funds exist, collect an initial partial filing fee of 20 percent of the
greater of (1) the average monthly deposits in the prisoner=s account, or (2) the
average monthly balance in the prisoner=s account for the prior six-month period.
After payment of the initial partial filing fee, the prisoner is required to make
monthly payments of 20 percent of the preceding month=s income credited to the
The requirement of 28 U.S.C. ' 1915(b)(1) that each Aprisoner shall be
required to pay the full amount of a filing fee@ requires individual prisoners to bring
separate suits, rather than file jointly under Rule 20. Hubbard v. Haley, 262 F.3d
1194 (11th Cir. 2001), cert. denied, 534 U.S. 1136, 122 S. Ct. 1083, 151 L. Ed. 2d
983 (2002). Moreover, to the extent that plaintiff is seeking to bring a class action,
his request to do so is denied. Under Rule 23(a)(4), a class representative must
Afairly and adequately protect the interests of the class.@ Additionally, a litigant
may bring his own claims to federal court without counsel, but not the claims of
others. See 28 U.S.C. ' 1654; see also 7A Wright, Miller & Kane, Federal Practice
and Procedure: Civil 3d ' 1769.1 (Aclass representatives cannot appear pro se.@).
prisoner=s account. 28 U.S.C. ' 1915(b)(2). The agency having custody of the
prisoner will forward these monthly payments to the Clerk of Court each time the
amount in the prisoner=s account exceeds $10, until the filing fee is fully paid. Id.
Plaintiff has submitted an affidavit and a certified copy of his prison account
statement for the six-month period immediately preceding the submission of his
complaint. A review of plaintiff=s account indicates an average monthly deposit of
$0.00, and an average monthly balance of $0.00. Plaintiff has insufficient funds to
pay any portion of the filing fee. Accordingly, the Court will not assess an initial
partial filing fee at this time.
28 U.S.C. ' 1915(e)
Pursuant to 28 U.S.C. ' 1915(e)(2)(B), the Court must dismiss a complaint
filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a defendant who is
immune from such relief. An action is frivolous if it Alacks an arguable basis in
either law or fact.@ Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v.
Hernandez, 112 S. Ct. 1728, 1733 (1992). An action is malicious if it is undertaken
for the purpose of harassing the named defendants and not for the purpose of
vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63
(E.D.N.C. 1987), aff=d, 826 F.2d 1059 (4th Cir. 1987). A complaint fails to state a
claim if it does not plead Aenough facts to state a claim to relief that is plausible on its
face.@ Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007).
Plaintiff, an inmate at the Cape Girardeau County Jail ("the Jail"), brings this
42 U.S.C. ' 1983 action against John Jordan (Cape Girardeau County Sheriff), Ruth
A. Dickerson, Captain Bud Proffer, James Mulcahy, and T.C. Stevens.
Plaintiff=s allegations arise out of a host of different occurrences that took
place at the Jail, beginning in January 2013 and continuing through 2014. Plaintiff
does not assert his claims against any of the named defendants, but rather, lists a host
of allegations, such as a change in mail procedures, retaliation for filing grievances,
the denial of books, magazines, and "religious tracks," the termination of a practice
that allowed volunteer preachers and pastors to minister at the Jail, a sub-standard
law library, "inadequate medical staff, facilities, and treatment," inhumane jail
conditions, a denial of good time credits, racial discrimination, and violation of
prison grievance rules. This is but a sample of the numerous allegations plaintiff
asserts in his fourteen-page complaint and attached forty-six pages of exhibits. The
separate claims bear little or no relationship to each other, and they are not asserted,
specifically, against any of the five named defendants.
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).
For the most part, however, the instant action presents a case involving
multiple claims against, not one, but five defendants.
Indeed, it appears that
plaintiff is attempting to consolidate almost every claim he might have ever had
against the Jail 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
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, AClaim 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.
Because plaintiff is proceeding pro se and in forma pauperis, the Court will
afford him the opportunity to file an amended complaint in this action. In so doing,
plaintiff should select the transaction or occurrence he wishes to pursue, in
accordance with Rules 18 and 20 of the Federal Rules of Civil Procedure, and file an
amended complaint, limiting his facts and allegations to the defendant(s) involved in
said transaction. Plaintiff should only include in his amended complaint those
claims that arise out of the same transaction or occurrence, or simply put, claims that
have some relation to each other.
See Fed.R.Civ.P. 20(a)(2).
plaintiff may choose to select one defendant and set forth as many claims as he has
against that single individual. See Fed.R.Civ.P. 18(a).
Plaintiff is reminded that he may not assert claims on behalf of other inmates,
because he lacks standing to do so, and a person not licensed to practice law may not
represent another individual in federal court. See 28 U.S.C. ' 1915(e)(2)(B); Lewis
v. Lenc-Smith Mfg. Co., 784 F.2d 829, 830 (7th Cir. 1986) (person not licensed to
practice law may not represent another individual in federal court). In addition,
plaintiff is required to submit his amended complaint on a court-provided form, and
it must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure.
Specifically, in the "Caption" of the form complaint, plaintiff shall set forth the name
and title, or occupation, of each defendant he wishes to sue; and in the "Statement of
Claim," plaintiff shall start by typing or writing the first defendant=s name, and under
that name, he shall set forth in separate numbered paragraphs the allegations
supporting his claim(s) as to that particular defendant, as well as the right(s) that he
claims that particular defendant violated.
If plaintiff is suing more than one
defendant, he shall proceed in this manner with each of the named defendants,
separately setting forth each individual name and under that name, in numbered
paragraphs, the allegations specific to that particular defendant and the right(s) that
he claims that particular defendant violated. Plaintiff should refrain from attaching
exhibits to his amended complaint.
In addition, plaintiff must provide the current address of each defendant
named in the amended complaint. The amended complaint must also contain short
and plain statements showing that plaintiff is entitled to relief, the allegations must
be simple, concise, and direct, and the numbered paragraphs must each be limited to
a single set of circumstances.
If plaintiff needs more space, he may attach
additional sheets of paper to the amended complaint and identify them as part of the
"Caption" or "Statement of Claim." Because the Court is allowing plaintiff to
amend his complaint, it will take no action as to the named defendants at this time.
Plaintiff is advised that the amended complaint will replace the original complaint
and will be the only pleading this Court reviews.
See, e.g., In re Wireless
Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir.
If plaintiff wishes to pursue additional claims against additional defendants,
and the claims do not arise from the same transaction or occurrence he has chosen to
advance in his amended complaint, he must file each such claim(s) on a separate
complaint form and either pay the filing fee or file a motion for leave to proceed in
forma pauperis and certified inmate account statement.
If plaintiff requires
additional form complaints or motions to proceed in forma pauperis, he may request
them from the Clerk. Because each complaint would be filed as a new action,
plaintiff should not put a cause number on them; the Clerk of Court will assign a
cause number to each new action.
Last, the Court will deny plaintiff's motion for appointment of counsel. AA
pro se litigant has no statutory or constitutional right to have counsel appointed in a
Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998).
determining whether to appoint counsel for an indigent litigant, the Court considers
relevant factors, such as the complexity of the case, the ability of the pro se litigant to
investigate the facts, the existence of conflicting testimony, and the ability of the pro
se litigant to present his or her claim. Id.
After reviewing these factors, the Court finds that the appointment of counsel
is not warranted at this time. This case is neither factually nor legally complex, and
it appears that plaintiff will be able to present his claims in accordance with this
Memorandum and Order. Consequently, the motion shall be denied at this time,
IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff's motions for leave to add
party-plaintiffs [Docs. #5, #10, #11, and #12] are DENIED.
IT IS FURTHER ORDERED that plaintiff's motion for appointment of
counsel [Doc. #6] is DENIED, without prejudice.
IT IS FURTHER ORDERED that plaintiff shall submit an amended
complaint, in accordance with the instructions set forth in this Memorandum and
Order, no later than thirty (30) days from the date of this Memorandum and Order.
Plaintiff is advised that his failure to comply with this Order will result of the
dismissal of this action, without prejudice and without further notice to him.
IT IS FURTHER ORDERED that the Court shall mail to plaintiff three
blank form complaints for the filing of a prisoner civil rights complaint. Plaintiff
may request additional forms from the Clerk, as needed.
Dated this 9th day of May, 2014.
UNITED STATES DISTRICT JUDGE
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