Golden v. Department of Corrections et al

Filing 17

MEMORANDUM AND ORDER that the Plaintiff shall have 30 days in which to file an amended complaint. As set forth above, Plaintiff's amended complaint must: (a) explain what each defendant did to him, when the defendant did it, and how the defendan t's actions harmed him; and (b) set forth only related claims that stem from the same basic events or occurrences. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: March 4, 2016: Check for amended complaint. The court will conduct further review of Plaintiff's amended complaint, should he file one, to determine whether summary dismissal of the amended complaint is appropriate under 28 U.S.C. § 1915(e)(2). Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MR. KELLY M. GOLDEN,
Plaintiff,
v.
DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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8:15CV147

MEMORANDUM
AND ORDER

This matter is before the court on initial review of Plaintiff Kelly Golden’s
Complaint (Filing No. 1). 28 U.S.C. § 1915(e)(2). For the reasons discussed below,
Plaintiff’s Complaint does not comply with general rules of pleading or the rules
concerning the proper joinder of defendants. On the court’s own motion, Plaintiff will
be provided an opportunity to file an amended complaint.
I. SUMMARY OF COMPLAINT
Plaintiff named fifteen individuals as the defendants—Kyle J. Poppert, Larry
Wayne, Cathy Sheair, Jason Hurt, Diane J. Sabatka-Rine, Marshall Lux, Jerall
Moreland, Judge Teresa Luther, C. Prokop, James Ellinger, Curtis Wees, Randy Kohl,
Mark Boyer, Mario Peart, Matt Heckman and Unit Manager Davis—as well as the
Department of Corrections “as a whole.” (Filing No. 1.) The events giving rise to
Plaintiff’s claims occurred anywhere between August of 2011 up to the filing of the
Complaint in May of 2015.
Plaintiff set forth numerous unrelated allegations in his Complaint, including:
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Plaintiff was provided too much good time and was released from custody.
Nobody checked Plaintiff’s paperwork when they released him.

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Judge Teresa Luther signed a warrant for Plaintiff’s arrest.
Someone informed the Kansas Police Department that Plaintiff was aggressive
and violent.
In Wyndott County Jail, Plaintiff was denied his mental health medication for
25.5 days.
Nurse Prokop threw away Plaintiff’s medication.
Nurse Prokop tore up paperwork that would have kept Plaintiff from getting
two “write ups.”
The Ombudsman’s Office never contacted Plaintiff again after his original
letter.
The unit administrator and unit manager put off helping Plaintiff with indigent
packages and getting papers copied.
The medical department cancelled Plaintiff’s medications.
Plaintiff was placed on room restriction and punished with 15 days without pay.
Various individuals failed to “drop” a misconduct report against Plaintiff.

For relief, Plaintiff requests that each defendant be terminated from his or her
employment and prohibited from working in his or her profession. He also seeks $25
million tax free, and for payment of all of his housing, food, medical expenses, and
transportation if he has to stay in or travel to Nebraska for litigation of this case.
II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must
dismiss a complaint or any portion of it that states a frivolous or malicious claim, that
fails to state a claim upon which relief may be granted, or that seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

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Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“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.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
omitted).
Liberally construed, Plaintiff here alleges federal constitutional claims. To state
a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected
by the United States Constitution or created by federal statute and also must show that
the alleged deprivation was caused by conduct of a person acting under color of state
law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993).
III. DISCUSSION OF CLAIMS
Plaintiff’s Complaint does not comply with general rules of pleading or the
rules concerning the proper joinder of defendants. On the court’s own motion,
Plaintiff will be provided an opportunity to file an amended complaint.

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A.

Rules of Pleading

Plaintiff named 17 parties as the defendants. Most of these parties are never
mentioned within Plaintiff’s factual allegations. In order to ensure a just and fair
resolution of this matter, Plaintiff should be mindful to explain in his amended
complaint what each defendant did to him, when the defendant did it, and how the
defendant’s actions harmed him.
B.

Rules of Joinder

Federal Rule of Civil Procedure 20 states that multiple defendants may be
joined in the same action only if “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.” Fed. R. Civ. P. 20(a)(2)(A). In
addition, there must be a “question of law or fact common to all defendants” in the
action. Fed. R. Civ. P. 20(a)(2)(B). Under Federal Rule of Civil Procedure 21, the
proper remedy for improper joinder of parties is for the court to “drop a party” or
“sever any claim against a party.” Fed. R. Civ. P. 21. The court may do so “[o]n
motion or on its own.” Id.
Here, allowing this case to proceed against all of the defendants—many who
appear to be sued based on unrelated events—would create a significant case
management problem. Thus, Plaintiff will be required to file an amended complaint
that sets forth only related claims that stem from the same basic events or occurrences.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall have 30 days in which to file an amended complaint. As
set forth above, Plaintiff’s amended complaint must: (a) explain what each defendant
did to him, when the defendant did it, and how the defendant’s actions harmed him;
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and (b) set forth only related claims that stem from the same basic events or
occurrences.
2.
The clerk of the court is directed to set a pro se case management
deadline in this case using the following text: March 4, 2016: Check for amended
complaint.
3.
The court will conduct further review of Plaintiff’s amended complaint, should
he file one, to determine whether summary dismissal of the amended complaint is
appropriate under 28 U.S.C. § 1915(e)(2).
DATED this 3rd day of February, 2016.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

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