Endicott v. Hurley et al

Filing 75

MEMORANDUM AND ORDER: For the reasons set forth above, IT IS HEREBY ORDERED that the motions of certain defendants to dismiss or for other relief (Docs. 53 , 56 ) are sustained, in that the following groups of claims are separated for separate di sposition: Claim Group 1: Counts 1, 2, 3, 4, 10, 11, and 15; and Claim Group 2: Counts 5, 6, 7, 8, 9, 12, 13, and 14. In all other respects, the motions are denied. IT IS FURTHER ORDERED that counsel for all parties confer and propose a schedule wher eby the parties, regarding Group 1, close discovery not later than April 30, 2016, and file motions for summary judgment on the Group 1 counts not later than June 30, 2016. A hearing on any such motion for summary judgment is set for July 15, 2016 at 10:00 a.m. Signed by Magistrate Judge David D. Noce on 2/1/16. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

FRANKLIN G. ENDICOTT,

)
)
Plaintiff,
)
)
v.
)
)
JAMES HURLEY, LARRY ALLEN,
)
PASCHA ALLEN, RICHARD S.
)
GRIGGS, WILLIAM JONES,
)
CHANTAY GODERT, ALAN EARLS,
)
JOYCE EDWARDS, TYREE BUTLER, )
JAMES RHODES, JACOB BAKER,
)
THOMAS CABRERA, M.D., CORIZON )
HEALTH, INC., LISA RUBY,
)
GEORGE A. LOMBARDI, CAPTAIN
)
CALVIN, CO I REID, CO I AVERY,
)
LT. CUTT, KRISTEN CUTT, ROSCHELL )
DAVIS, CORIZON, L.L.C.
)
)
Defendants.
)

No. 2:14 CV 107 DDN

MEMORANDUM AND ORDER REGARDING CLAIM ORGANIZATION
This action is before the court on the motion of defendants Larry Allen, Jacob
Baker, Tyree Butler, Alan Earls, Joyce Edwards, Chantay Godert, Richard Griggs, James
Hurley, William Jones, George Lombardi, James Rhodes, and Lisa Ruby to dismiss
plaintiff’s claims under Federal Rule of Civil Procedure 21. (Doc. 53, 56.)1 The parties
have consented to the exercise of plenary authority by the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 26.) Defendants filed a motion
to sever parties and claims on December 7, 2015, and amended that motion on December
8, 2015. (Docs. 53, 56.) Plaintiff replied to defendants’ motion on December 30, 2015

1

Document 56 is an amended motion to partially dismiss. The only difference between the two
documents is that Document 56 added defendants Reed and Calvin. (Doc. 56 at 1.)

(Doc. 71) and defendants responded to that reply on January 6, 2016. (Doc. 73). The
court heard oral argument on January 21, 2016.

I. BACKGROUND
On December 11, 2014, plaintiff commenced this action, pro se, against
defendants and he was granted in forma pauperis status. (Docs. 1, 2.) An order of partial
dismissal without prejudice was entered for several defendants. (Doc. 6.) Plaintiff filed
two amended complaints pro se. (Docs. 14, 43.) Plaintiff was appointed counsel on May
19, 2015, and the court granted counsel time and leave to file a third amended complaint.
(Doc. 39, 40.) Counsel filed a third amended complaint on October 7, 2015. (Doc. 49.)
According to plaintiff’s allegations the following occurred.
Plaintiff is currently incarcerated at Northeast Correctional Center (N.E.C.C.) in
Bowling Green, Missouri. (Doc. 47-1 ¶ 1.) All defendants except Dr. Cabrera, M.D.,
Pascha Allen, LPN, Corizon Health Inc., and Corizon, LLC2 are or were employed by
N.E.C.C. (Id. at ¶¶ 2–23.)

Varicose Veins and Ischemic Attacks
Plaintiff was diagnosed by Dr. Victor Phillips, M.D., with symptomatic varicose
veins in his right leg on or about July 2010. He ordered an ultrasound and wrote a pain
prescription for Valium and numbing gel. Corizon employees made no effort to supply
plaintiff with the prescribed medication or an alternative, because schedule II narcotics
could not be provided to plaintiff. (Id. ¶¶ 29–32.) On or about September 17, 2010,
plaintiff requested medical services because his calf had become swollen, hardened, red,
warm, and painful. Dr. Cabrera noted that vein ablation had been approved by Dr.
Phillips, but an ultrasound was needed and, therefore, Dr. Cabrera approved one. (Id.
¶¶ 33–34.)

2

Plaintiff alleges that Corizon Health, Inc. and Corizon, L.L.C. are legally related entities. (Doc.
47-1 ¶¶ 23–24.) The court will refer to both entities simply as “Corizon”.

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On September 20, 2010, plaintiff was seen at sick call and diagnosed with
phlebitis, inflammation of a vein, and ordered to rest and ice the area and given aspirin.
An ultrasound was never performed. (Id. ¶¶ 35–36.) On or about September 29, 2010,
plaintiff was admitted to the Audrain Medical Center where an ultrasound was performed
showing a clot in his vein above his right ankle. Dr. Phillips prescribed pre-operative
medication for plaintiff. Corizon employees made no effort to provide these medications
to plaintiff before the procedure. On or about October 1, 2010, plaintiff underwent partial
vein ablation at Dr. Phillips’ office in Jefferson City, Missouri. The procedure was more
painful and stressful than it would have been had plaintiff been given the prescribed
medication. Due in part to these factors the procedure was not completed on October 1,
2010 and a follow-up procedure was scheduled for October 15, 2010. (Id. ¶¶ 37-39.)
Prior to the October 15, 2010 appointment no employee at Corizon made any
effort to arrange for the pre-operative medication to be supplied to plaintiff. Therefore,
Corizon and its employees knowingly sent plaintiff to the appointment without the
required medication being given.

Furthermore, defendants Avery and Reid caused

plaintiff to be late to the procedure resulting in the rescheduling of it to November 5,
2010. (Id. ¶¶ 42–43.)
On October 21, 2010, plaintiff went to the infirmary with a self-reported
emergency because his left hand was tingling and his fingers and face were becoming
numb. Plaintiff informed Nurse Linda Wiley, L.P.N., an employee of Corizon, of the left
leg blood clot. Nurse Wiley assessed the situation as “non-emergent, but urgent” and told
him to come back at sick call. On October 22, 2010, plaintiff appeared at sick call and
saw Nurse Wiley again. He informed her that he had numbness from the top upper left
side of his lip and his left upper arm down to his fifth digit the night before. He
complained of dizziness and a headache during the event. Nurse Wiley referred him to
Chronic Care, but did not consult a physician, order any tests, or take any action to rule
out complications or conditions related to his lower extremity blood clot. (Id. ¶¶ 44–45.)
On November 3, 2010, plaintiff again saw Nurse Wiley. He reported another
episode the night before which worried him that he was having stroke-like symptoms.
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He had not seen a physician even though he had reported the same symptoms on October
21, 2010. Corizon made no other efforts to rule out a stroke, transient ischemic attack, or
other complications due to the known blood clot in his left leg. (Id. ¶¶ 47.)
On November 5, 2010, Dr. Phillips recommended an ultrasound on his leg as
follow-up to the vein ablation as well as a carotid Doppler due to the transient ischemic
attacks. On November 8, 2010, Dr. Cabrera reviewed the recommendation and referred it
to “RMD” for follow-up, and it was approved on or about the same day. The carotid
Doppler was not scheduled until November 18, 2010 and the follow-up ultrasound was
delayed until December 2, 2012. This was due to an alleged error in obtaining a referral.
(Id. ¶¶ 48–49.)

Fractured Leg
On January 11, 2014, plaintiff injured his right ankle. He was sent via ambulance
to Hannibal Regional Hospital’s Emergency Department (ED). He was diagnosed with
an avulsion fracture of his right ankle and received discharge instructions to follow-up
with Dr. Curtis Burton, M.D., an orthopedic specialist in five days. On January 11, 2014,
plaintiff returned to N.E.C.C. and Nurse Allen saw him and stated plaintiff was to followup with Dr. Cabrera, not Dr. Burton, in ten days, not five, even though she noted that the
hospital said to follow-up in five days with Dr. Burton. Dr. Cabrera is not an orthopedist.
Dr. Archer provided defendant tramadol and Ibuprofen for his pain, but did not order a
follow-up with either Dr. Cabrera or Dr. Burton. Nurse Allen failed to provide Dr.
Archer with the ED report, even after Dr. Archer requested it. Nurse Allen then failed to
provide the ED report to Dr. Cabrera even though she told Dr. Archer she would. This
delay caused plaintiff to not receive timely treatment for his right ankle fracture, which
increased his risk for complications due to his pre-existing medical conditions. (Id.
¶¶ 51–54.)
On January 21, 2014, Dr. Archer saw plaintiff for a follow-up on his ankle and
medication refill. Dr. Archer referred plaintiff to an orthopedic specialist. On January
29, 2014, plaintiff saw Dr. Galbraith, M.D., an orthopedic specialist, via teleconference
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and was prescribed a boot cast. This cast was to be shipped next-day express. On
February 4, 2014, plaintiff went to sick call to inquire about his prescribed boot cast.
Nurse Allen stated she knew something about a boot cast. The x-ray technician fitted the
boot and gave it to plaintiff to wear. On March 5, 2014, Dr. Galbraith ordered plaintiff to
remain in the boot cast for two weeks and then to wean out of the boot cast. On March
19, 2014, the boot cast was taken away from plaintiff with no time to strengthen his leg
and wean out of the boot cast. (Id. ¶¶ 55–59.)

Prostate Medication
Corizon is responsible for scheduling recommended lab work and physician visits.
Nurse Allen, as the chronic care nurse, should be in charge of this procedure. On August
1, 2014, without seeing plaintiff, Dr. Cabrera renewed plaintiff’s medications and
changed his prostate medication. Missouri Revised Statute 334.100.2(4) prohibits a
doctor from prescribing medication without seeing the patient. On September 5, 2014,
plaintiff reported to Nurse Wiley regarding his difficulty urinating and the change in his
prostate medication. Nurse Wiley stated she would inform Nurse Allen. Neither nurse
reported plaintiff’s condition to a physician or scheduled plaintiff for a physician visit.
(Id. ¶¶ 60–63.)
On September 20, 2014, plaintiff saw Dr. Glen Babich, M.D., for a cardiology
appointment and informed him that his prostate medication was changed. His prostate
medication was returned to the original one Plaintiff could not resume the original
prostate medication for ten days, and therefore, his prostate continued to swell resulting
in difficulty urinating, a painful bladder, lack of sleep, emotional stress, and irritability.
(Id. ¶¶ 64–65.)
Corizon changed its policies so that formula medications could not be prescribed
for inmates. Plaintiff’s original prostate medication is a formula medication. Corizon
changed plaintiff’s medication without regard to whether it would be effective and
without regard to the fact that plaintiff’s original medication was working to alleviate his
condition. (Id. ¶¶ 66–68.)
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Prison Policy Relating to Time Transfer to Sick Call
Corizon has a policy of allowing inmates 15 minutes to move from their housing
unit to sick call in order to turn in their Medical Request form. N.E.C.C. Warden James
Hurley limited this movement to only 10 minutes. Due to this limited time frame and the
difficulty of movement in a prison environment, plaintiff was not seen on August 29,
2014. CO I Lisa Ruby prevented plaintiff from reaching sick call within Corizon’s 15
minute time limit by enforcing defendant Hurley’s 10 minute time limit.

Plaintiff,

therefore, continued to suffer the effects of the wrong prostate medication resulting in
difficulty urinating, pain, and discomfort. (Id. ¶¶ 69–73.)
Director of Missouri Corrections, George Lombardi, has a duty to ensure inmates
have access to health care services. By allowing Warden Hurley to enforce a 10 minute
movement limit, Lombardi is preventing prisoners, including plaintiff, from accessing
health care. (Id. ¶¶ 74–76.)

Knowledge of Rocschell Davis
Plaintiff has filed multiple Informal Resolution Requests (IRR) since September
2010 in order to allege deliberate indifference to his medical needs by Nurse Allen.
Health Services Administrator Davis participated in the review of and response to some
of the IRRs, but little to no change has been made regarding Nurse Allen’s care of
plaintiff. Davis knew or should have known of the deliberate indifference of Corizon and
its employees to the medical needs of plaintiff. (Id. ¶¶ 77–79.)

Transfer to Administrative Segregation
On or about March 19, 2014, a note was placed in Nurse Allen’s file informing her
not to delay or deny plaintiff’s access to medical care. Plaintiff was transferred to
administrative segregation for unspecified “gang activity” on or about March 19, 2014, at
the insistence of Lt. Larry Allen.

Other correctional officers objected to this

classification. Lt. Larry Allen is married to Nurse Pascha Allen. During the transfer of
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plaintiff to administrative segregation Lt. Allen treated him in an intimidating manner
and arranged for his wife, Nurse Allen, to perform a vital signs check before plaintiff was
placed in administrative segregation. (Id. ¶¶ 80–84.)
Before being placed in administrative segregation plaintiff was on honor status.
Upon placement in administrative segregation his honor status was revoked and all
privileges were rescinded. Additionally, while in administrative segregation plaintiff was
unable to perform appropriate physical therapy on his ankle. (Id. ¶¶ 86–89.)

Denial of a Meaningful Hearing Regarding Administrative Segregation Placement
According to Missouri Revised Statute 217.375.1 a prisoner is entitled to a hearing
within five days of being placed in administrative segregation. Functional Unit Manager
Tyree Butler refused to schedule plaintiff a hearing until March 28, 2014, nine days after
being placed in administrative segregation. Plaintiff was informed that there was an
ongoing investigation of him by Investigator James Rhodes. Furthermore, plaintiff was
informed that he was not entitled to a hearing because he was not placed in administrative
segregation for a conduct violation. Plaintiff was informed on March 28, 2014, May 23,
2014, June 30, 2014, and July 18, 2014, at his periodic segregation reviews, that he
would remain in administrative segregation until Investigator Rhodes’ investigation was
finished. Lt. Kristen Cutt and Functional Unit Manager Butler participated in these
review hearings. Deputy Warden Jones, Assistant Warden Griggs, Assistant Warden
Godert, and Warden Hurley had to approve his extended segregation. Plaintiff was not
removed from administrative segregation until August 1, 2014. (Id. ¶¶ 90–99.)

Failure to have Policies Defining “Gang”, “Gang Member”, or “Gang Activity”
Plaintiff was not, upon his release from administrative segregation, provided the
reasons for his administrative segregation. He did not know what rule he violated or how
to avoid violation in the future. He was never provided a definition of “gang activity” or
“gang affiliation”. (Id.¶¶ 100.)

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Director Lombardi, Warden Hurley, Deputy Division Director Earls, and other
MDOC personnel have no definition of “gang affiliation” or “gang activity”. Also there
is no policy requiring a clear statement of what conduct or rule violation is the basis for
an investigation. MDOC does not provide an explanation of how someone is an ongoing
risk to the safety and security of the institution. This creates an environment where
someone can be held in administrative segregation in “pending investigation” status for
significant amounts of time. (Id. ¶ 101.)

Failure to Provide Findings and Conclusions of the Investigation
Investigator Rhodes never provided plaintiff a summary of the investigation and
whether plaintiff was found to be a gang member or involved in gang activity. Deputy
Division Director Alan Earls, Warden James Hurley are required to keep records of
administrative segregation pursuant to Missouri Revised Statute 217.375.2. (Id. ¶¶ 103–
04.)

Steel Grate on Administrative Segregation Cells Doors and Forced Cell Sharing
with Known “Gang Members”
Administrative cell doors are solid steel with a solid glass window. Each steel
door has eleven steel pieces wielded to the inside of the door at chest level at a horizontal
angle allowing for severe injury to inmates. Warded Hurly, Deputy Director Earls, and
Director Lombardi allowed for these steel slates to be placed inside the cells. There
appears to be no penological purpose to the steel plates inside the cell. (Id. ¶¶ 106–08.)
Prisoners housed in administrative segregation are double celled with anyone not
on their list of known enemies. At least three declared gang members refused to be
housed with plaintiff, and plaintiff refused to be housed with any known gang member.
Plaintiff was housed in a single cell and then with a non-gang member for a least a
portion of his time in administrative segregation. (Id. ¶¶ 109–13.)
On July 13, 2014, CO II Jacob Baker ordered plaintiff shackled and cuffed on a
steel bench until he agreed to be double celled. Plaintiff agreed to a double cell if he
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would not be placed with a gang member. Plaintiff was placed with a gang member of a
prison gang known to assault sex offenders, which the plaintiff is. CO II Baker knew
plaintiff was a convicted sex offender and that the other prisoner was a member of a
prison gang known for assaulting sex offenders. (Id. ¶¶ 110–18.)

Failure to Obtain Enemy Waiver
Policies and procedures at N.E.C.C. require that if two inmates are enemies then
each must sign a waiver before being placed back into general population. If one refuses,
one must be moved to a different prison. Functional Unit Manager Tyree Butler, the
head of classification at N.E.C.C., failed to obtain an enemy waiver from plaintiff for
each prisoner who declared him to be an enemy before releasing him back into general
population in August 2014. (Id. ¶¶ 119–20.)

Denial of Access to Law Library
While plaintiff was in administrative segregation from March 19, 2014 to August
1, 2014, he was denied access to the prison law library and law clerk assistance by
librarian Joyce Edwards, Assistant Warden Griggs, CO William Jones, and Warden
Hurley. Plaintiff was in the process of appealing his conviction in state court and
preparing the lawsuit at issue here. Plaintiff submitted multiple special unit legal request
forms, which are required for inmates in administrative segregation to access case law
and law clerk assistance. Plaintiff’s forms were denied by defendant Edwards, stating
plaintiff would not gain access if he did not pay using his private funds as plaintiff did
not have a qualified legal claim form. Plaintiff’s request for assistance from the law clerk
was not responded to by defendant Edwards. Assistant Warden Griggs responded to
plaintiff’s request by either saying a qualified legal claim verification was not required or
that plaintiff could not access law materials as there was no court deadline to prepare for.
Plaintiff filed an IRR regarding the denials. (Id. ¶¶ 123–29.)
On July 23, 2014, Lt. Kristin Cutt, Functional Unit Manager Butler, and Assistant
Warden Griggs denied plaintiff’s IRR and stated he needed an approved qualified legal
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claim verification for such access. Plaintiff appealed and defendant Earls denied the
appeal. Other similarly situated prisoners were given access to the law library and
offender law clerks. Due to this denial plaintiff was prevented from preparing and
providing motions and research to his then attorney Larry Fleming. (Id. ¶¶ 129–34.)
Upon release from administrative segregation, plaintiff’s access to the law library
continued to be restricted. Assistant Warden Griggs had plaintiff report to mandatory
work detail during free time which plaintiff could have used in the law library. Assistant
Warden Griggs also sent plaintiff’s qualified legal claim form back to plaintiff’s case
worker for verification of which days of the week plaintiff would be using the law
library. Assistant Warden Griggs has not delayed another prisoner’s request in this way.
(Id. ¶¶ 135–37.)

Night Time Visit for Blood Pressure Check
Nurse Allen scheduled plaintiff for a blood pressure check at 9:15 p.m. on
November 11, 2014. No other inmates were present in the medical unit at this time.
Blood pressure checks are not normally conducted at this time. The medical unit is one of
the only places in N.E.C.C. not covered by cameras. Lt. Allen and several other officers
were in the medical unit when plaintiff reported. Nurse Allen did not take his blood
pressure for at least twenty minutes. Plaintiff was left alone with Lt. Allen, the medical
officer, and several other officers. Once plaintiff’s blood pressure was taken he was held
in the medical unit until he specifically asked for a pass back to his housing unit. (Id.
¶¶ 138–42.)

Allegations and Relief Sought

In Count 1 plaintiff alleges a deliberate indifference to his serious medical needs

(varicose veins, transient ischemic attacks, fractured foot, and prostate medication) by
Corizon, defendant Nurse Allen, and defendant Dr. Cabrera. (Id. ¶¶ 146–58.)

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In Count 2 plaintiff alleges a deliberate indifference to his serious medical needs
by the change in his prostate medication against Corizon and defendant Dr. Cabrera. (Id.
¶¶ 159–67.)
In Count 3 plaintiff alleges a deliberate indifference to his serious medical needs
by defendants Hurley and Ruby for the deliberate prevention of plaintiff from being seen
at sick call due to N.E.C.C. policies. (Id. ¶¶ 168–80.)
In Count 4 plaintiff alleges a deliberate indifference to a serious medical need by
defendants Calvin, D. Cutt, Reid, and Avery when they delayed his transfer for surgery
on October 15, 2010. (Id. ¶¶ 181–91.)
In Count 5 plaintiff alleges retaliation by defendant L. Allen and defendant P.
Allen when they falsely identified plaintiff as a gang member and had him placed in
administrative segregation in violation of his First Amendment right to file complaints
free from coercion or threats by N.E.C.C., prison employees, Corizon, as well as Corizon
employees. (Id. ¶¶ 193–98.)
In Count 6 plaintiff alleges retaliation against him in violation of his First
Amendment right to seek redress by defendants Hurley, Griggs, Jones, Godert, Rhodes,
Cutt, and Butler when they put him in administrative segregation and failed to provide a
timely hearing or identify the charges against him. (Id. ¶¶ 202–05.)
In Count 7 plaintiff alleges retaliation against him by defendants Lombardi, Earls,
L. Allen, Hurley, Griggs, Jones, Godert, Rhodes, Butler, Baker, and Cutt for placing him
in an administrative segregation cell which has steel grates with sharp points on the inside
of the door which may cause serious injury. (Id. ¶¶ 210–13.)
In Count 8 plaintiff alleges retaliation in violation of his First Amendment right by
defendants Baker and Cutt when they placed him in an administrative segregation cell
with known gang members. (Id. ¶¶ 218–21.)
In Count 9 plaintiff alleges retaliation by defendants Hurley, Griggs, Jones, Earls,
Butler, Cutt, and Edwards when they denied him access to the law library while he was
administrative segregation. (Id. ¶¶ 226–29.)

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In Count 10 plaintiff alleges that defendants Hurley, Davis, Griggs, Jones, Godert,
Earls, and Lombardi tacitly authorized the deliberate indifference to the medical needs of
plaintiff by knowing of the problems Corizon and its employees were causing, but never
taking any action to address the problems in violation of plaintiff’s Eighth Amendment
rights. (Id. ¶¶ 234–38.)
In Count 11 plaintiff alleges that defendants Hurley, Davis, Griggs, Jones, Godert,
Earles, and Lombardi tacitly authorized the retaliation against plaintiff by N.E.C.C. and
Corizon for his exercising of his First amendment right to redress in violation of his
Eighth Amendment rights. (Id. ¶¶ 242–45.)
In Count 12 plaintiff alleges that defendants Lombardi, Earls, L. Allen, Hurley,
Griggs, Jones, Godert, Rhodes, Butler, Baker, and D. Cutt violated his Eighth
Amendment rights by placing him in a administrative segregation cell which has steel
grates with sharp edges welded to the inside. These grates could cause a high risk of
injury to plaintiff resulting in cruel and unusual punishment (Id. ¶¶ 250–59.)
In Count 13 plaintiff alleges that defendants Lombardi, Earls, Hurley Griggs,
Jones, Godert, and Butler violated his right to due process and equal protection by not
implementing policies at N.E.C.C. defining “gang,” “gang member,” or “gang activity.”
(Id. ¶¶ 263–68.)
In Count 14 plaintiff alleges that defendants Hurley, Earls, and Butler violated his
right to due process and equal protection by failing to follow N.E.C.C. policies regarding
the release of declared enemies from administrative segregation into general population
without a waiver. (Id. ¶¶ 272–76.)
In Count 15 plaintiff alleges that defendants L. Allen and P. Allen conspired
together to violate his right to due process, equal protection, and access to medical care in
retaliation for plaintiff’s complaints against defendant P. Allen and others at N.E.C.C.
This conspiracy resulted in plaintiff being labeled a gang member, moved to
administrative segregation, and stripped of his honor status. (Id. ¶¶ 280–82.)

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Plaintiff seeks significant actual damages for the injuries caused; significant
punitive damages to deter any future such action; and reasonable attorneys’ fees and
costs. (Id. at 29–55.)

II. GROUPING OF CLAIMS
Defendants represented by the Missouri Attorney General’s office seek partial
dismissal of claims and defendants under Federal Rule of Civil Procedure 21. Rule 21
allows the court to sever or drop a claim if misjoined under Rule 20. Rule 20 provides
that more than one defendant may be joined in one action, if any similar claim is asserted
against the defendants or if the claims against them arise from the same transaction,
occurrence, or series of transactions or occurrences, and there is a question of law or fact
that is common to all the claim against all the defendants. F. R. Civ. P. 20(a)(2).
Plaintiff argues that all of his claims are bound together by a continuing pattern of
deprivation of his constitutional rights by the defendants which is reflected in his Count
15 claim.
Defendants’ motions do not test the legal or factual sufficiency of plaintiff’s
claims, but whether they should be joined or severed. The court concludes that justice
can be best served by the organization of plaintiff’s claim into groups that are efficiently
litigated. Federal Rule of Civil Procedure 42(b) allows the court broad discretion to
separate claims into litigable groups “[f]or convenience, to avoid prejudice, or to expedite
and economize . . . .” F. R. Civ. P. 42(b); cf. Rikard v. U.S. Auto. Prot., LLC, No. 4:11
CV 1580 JCH, 2013 WL 5538726, at *2 (E.D. Mo. Oct. 8, 2013).
All claims involve overlapping questions of fact as well as many of the same
defendants. To partially dismiss some claims, forcing plaintiff to refile at least two other
complaints, would be a waste of judicial and party resources with extended discovery as
well as duplicitous pre-trial motion practice. See Evantigroup, LLC v. Mangia Mobile,
LLC, No. 4:11 CV 1328 CEJ, 2014 WL 1048589, at *1 (E.D. Mo. Mar. 14, 2014).
Furthermore, the court has appointed counsel for plaintiff and to separate these actions
into entirely different complaints could make it prohibitively expensive for counsel as
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well as plaintiff. See Reznik v. HMSHost Corp., No. 4:15 CV 648 CAS, 2016 WL
233242, at * 4 (E.D. Mo. Jan. 20, 2016) (joinder allowed for economically disadvantaged
plaintiffs to hire one counsel and save filing fees, attorneys’ fees, discovery and
mediation costs, etc.). However, to litigate all claims in one trial or other proceeding will
unnecessarily burden the parties and possibly confuse a jury.
The court has considered each of plaintiff’s fifteen claims and has determined that
the following two groups of claims are best separated for separate consideration. By
organizing the claims into these groups the court has not concluded that each or any
claim or count is legally or factually sufficient on its face.

III. CLAIM ORGANIZATION
For the reasons set forth above,
IT IS HEREBY ORDERED that the motions of certain defendants to dismiss or
for other relief (Docs. 53, 56) are sustained, in that the following groups of claims are
separated for separate disposition:
Claim Group 1: Counts 1, 2, 3, 4, 10, 11, and 15; and
Claim Group 2: Counts 5, 6, 7, 8, 9, 12, 13, and 14.
In all other respects, the motions are denied.
IT IS FURTHER ORDERED that counsel for all parties confer and propose a
schedule whereby the parties, regarding Group 1, close discovery not later than April 30,
2016, and file motions for summary judgment on the Group 1 counts not later than June
30, 2016. A hearing on any such motion for summary judgment is set for July 15, 2016
at 10:00 a.m.
/S/ David D. Noce
u
UNITED STATES MAGISTRATE JUDGE
Signed on February 1, 2016.

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