Pope v. Palmer et al

Filing 3

COPY of SCREENING ORDER filed in case 3:13-cv-00008. Signed by Judge Miranda M. Du on 7/1/2013. (Copies have been distributed pursuant to the NEF - DRM) Modified on 7/2/2013 to correct file date(DRM).

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 10 JOHN QUINTERO, et al., 11 Plaintiffs, SCREENING ORDER v. 12 13 Case No. 3:13-cv-00008-MMD-VPC JACK PALMER, et al., Defendants. 14 15 This prisoner civil rights action comes before the Court for initial review under 28 16 17 U.S.C. § 1915A. 18 I. SEVERANCE 19 In conducting initial review under § 1915A, the Court addresses at the outset the 20 question of whether this action should proceed forward as a single action by multiple 21 plaintiffs. The manner in which all remaining requests for relief, including the pauper 22 applications, are handled follows from that initial determination. The Court, accordingly, 23 considers whether severance is warranted pursuant to Rule 21 of the Federal Rules of 24 Civil Procedure. 25 The Court has been presented with: (a) a complaint purporting to assert claims 26 on behalf of John Quintero, Dirk Klinke, and Kevin Pope, but which is signed only by 27 Quintero; and (b) a separate pauper application for each putative plaintiff. 28 The complaint makes the following allegations. 1 Count I alleges that defendant officials at the Northern Nevada Correctional 2 Center (NNCC) have restricted the free exercise of religion in violation of the First 3 Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 4 (RLUIPA). According to the allegations of the complaint,1 Catholic inmates were able to 5 engage in group rosary prayer in the NNCC prison chapel up until the fall of 2011. At 6 that time, the warden instructed the chaplain to prohibit all inmate run services in the 7 chapel. This action precluded group rosary prayer as opposed to individual rosary 8 prayer in an inmate’s cell. According to the complaint, rosary prayer is not an 9 exclusively private devotion under the Catholic faith. When Quintero inquired initially, 10 he was advised that the change was a temporary change for security reasons. The 11 change thereafter became permanent. 12 religions – such as Native American religions as well as pagan or witchcraft religions – 13 are unaffected because followers can meet in their separate sacred space at any time 14 during operational hours. Alleged “indoor religions,” such as Catholics, are affected, 15 however. 16 access to inmate run services. The complaint alleges that “land based” The complaint seeks, inter alia, to enjoin the practice of barring chapel 17 Count II alleges that NNCC defendant officials have restricted the free exercise 18 of religion “and use of the U.S. mail” in violation of the First Amendment and RLUIPA. 19 Quintero alleges, inter alia, that he was threatened with disciplinary sanctions for writing 20 a letter to the local Catholic bishop that he also copied to the prison chaplain as well as 21 a lay Catholic minister and deacon. 22 Count III also alleges that NNCC defendant officials have restricted the free 23 exercise of religion in violation of the First Amendment and RLUIPA. Quintero alleges, 24 inter alia, that: (a) a Latin language book and compact disc that he ordered for theology 25 26 27 28 1 For purposes of the present screening review, all nonconclusory allegations of actual fact are accepted arguendo as true. No statement summarizing the allegations of the complaint or any other paper submitted constitutes a finding by this Court that the statement in fact is true. The Court merely is summarizing the allegations made in the papers submitted herein. 2 1 study and participation in Latin language prayer were destroyed; and (b) entries 2 associated with his product order and the destruction of the items in his inmate files also 3 were destroyed. Count IV also seeks to assert a free exercise claim under the First Amendment 4 5 and RLUIPA. Count IV alleges that Dirk Klinke was denied access to Catholic 6 sacraments during a two-month stay in the medical facility at NNCC from January 17, 7 2011, to March 18, 2011. The count further alleges that Klinke’s “kites,” i.e. written 8 inmate requests, regarding the issue were lost or destroyed. 9 alleges that correctional administrative regulations are impermissibly vague regarding access in administrative segregation, austere Count IV additionally 10 religious housing, disciplinary 11 segregation, protective segregation, intake, and disruptive group segregation/close 12 custody. There are no allegations of actual fact in Count IV suggesting that Klinke, 13 much less the other two putative plaintiffs, have standing to raise any issue regarding 14 religious access in these myriad distinct custody classifications. 15 Count V alleges a denial of freedom of speech in violation of the First 16 Amendment. Quintero alleges that his First Amendment rights were violated when a 17 mail room policy was adopted not permitting the use of return-address stickers on mail 18 from family members. He alleges that mail from his step-mother was returned because 19 it had a return address sticker on the mailing. 20 Count VI seeks to assert a free exercise claim under the First Amendment and 21 RLUIPA. Quintero challenges the prison mail room’s rejection of his subscriptions for 22 two Catholic periodicals. 23 Finally, Count VII also seeks to assert a free exercise claim under the First 24 Amendment and RLUIPA. Count VII alleges, inter alia, that Kevin Pope is a practitioner 25 of Siddha Yoga and that access has been denied to the NNCC chapel for inmate-run 26 practice of Siddha Yoga. 27 /// 28 /// 3 1 Subsequent to the filing of the complaint, Quintero has written a letter 2 to the 2 Clerk. Quintero asserts that it has become “absolutely impossible” for him to 3 communicate, as the purported “writing plaintiff,” with Klinke and Pope, due to prison 4 security level changes. He requests that the Court order the prison law librarian to 5 serve Klinke and Pope with notices. Quintero states that he believes that Klinke is in 6 “Level I,” but he does not know Pope’s location. 7 Prisoners seeking to bring a civil action in forma pauperis are subject to the 8 restrictions and requirements of the Prisoner Litigation Reform Act (PLRA). One such 9 requirement is set forth in 28 U.S.C. § 1915(b)(1), which states in pertinent part that “if a 10 prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be 11 required to pay the full amount of the filing fee.” Accordingly, while a prisoner plaintiff 12 granted pauper status may be allowed to pay only an initial partial filing fee, he 13 ultimately will be required to pay the full filing fee through installment payments drawn 14 from his inmate trust account. 15 The three federal circuits that have directly considered the issue all have agreed 16 that this statutory requirement of full payment of the filing fee remains applicable when 17 multiple prisoners seek to join as co-plaintiffs in a single action, such that each prisoner 18 still must pay the full filing fee. See Hagan v. Rogers, 570 F.3d 146, 155-56 (3rd Cir. 19 2009); Boriboune v. Berge, 391 F.3d 852, 855-56 (7th Cir. 2004); Hubbard v. Haley, 262 20 F.3d 1194, 1197-98 (11th Cir. 2001).3 The circuits differed, however, as to the appropriate handling of the actions 21 22 thereafter, with regard to joinder. 23 /// 24 2 25 26 27 28 Plaintiff may not communicate with the Court or Clerk by letter. If plaintiff wishes to seek relief from the Court, he must file a captioned motion complying with Rule 7(b) of the Federal Rules of Civil Procedure that, inter alia, states the relief sought and the grounds therefor. The Court does not take action based on letters, and neither the Court nor Clerk engage in correspondence with litigants. 3 But cf. Tailey-Bey v. Knebl, 168 F.3d 884, 886-87 (6th Cir. 1999)(apportioning costs between two prisoner plaintiffs). 4 1 In Hubbard, the Eleventh Circuit affirmed a district court order dismissing a multi- 2 plaintiff action and directing that multiple separate actions instead be opened by the 3 clerk. The appellate panel held that separate suits were required in order to satisfy the 4 requirement under the PLRA that each prisoner pay a full filing fee. The panel rejected 5 the plaintiffs’ argument that permissive joinder of the multiple plaintiff prisoner claims 6 was authorized under Rule 20. The panel held that “to the extent that the Rules 7 Enabling Act, as expressed in Rule 20, actually conflicts with the PLRA, we hold that the 8 statute repeals the Rule.” 262 F.3d at 1198. 9 In Boriboune, the Seventh Circuit reversed a district court order that similarly had 10 dismissed a multi-plaintiff prisoner action without prejudice. The panel agreed with the 11 Eleventh Circuit that each plaintiff must pay a full filing fee pursuant to the PLRA. The 12 panel did not agree, however, that the PLRA repealed Rule 20 by implication. The 13 Seventh Circuit held that district courts within that circuit must accept complaints filed by 14 multiple prisoners if the criteria for permissive joinder are satisfied but then must apply 15 the PLRA fee payment requirements to each plaintiff separately. 16 In Hagan, the Third Circuit reversed a district court order that had dismissed all 17 but one of the multiple plaintiff’s claims with leave to file individual complaints, on the 18 basis that the PLRA barred permissive joinder under Rule 20. In Hagan, fourteen 19 inmates in the Adult Diagnostic & Treatment Center in Avenel, New Jersey, had filed a 20 joint complaint alleging that prison officials had failed to contain and treat a serious and 21 contagious skin condition. The panel agreed with the Eleventh and Seventh Circuits that 22 each prisoner plaintiff must pay the full filing fee pursuant to the PLRA. On the question 23 of joinder, the Third Circuit agreed with the Seventh Circuit that the PLRA did not 24 impliedly repeal Rule 20, thus disagreeing with the Eleventh Circuit. 570 F.3d at 152- 25 56. 26 The Hagan panel further discussed the district court’s reliance generally upon 27 difficulties in multi-plaintiff prisoner litigation as a factor rendering joint pursuit of the 28 litigation impracticable. The practical difficulties canvassed by the district court included: 5 1 (a) logistical difficulties in each plaintiff reviewing the same unchanged contemplated 2 filing and signing each paper filed, as required by the federal rules; (b) difficulties in 3 conferring jointly regarding the litigation in the prison setting, even within a single 4 institution, with concomitant efforts by the inmates to compel prison authorities to 5 override security and housing decisions on account of the litigation; (c) the prospect that 6 co-plaintiffs could be transferred to other facilities during the possible multi-year course 7 of the litigation, making joint action even more problematic; and (d) the possibility of 8 coercive action between inmates with regard to joint litigation. The Third Circuit 9 concluded that the district court’s reliance upon such factors was tantamount to a 10 holding that prisoners do not constitute “persons” under Rule 20. So construed, the 11 panel held that the district court’s reliance on these factors constituted error. The panel 12 noted that the facility in question was only a “relatively small facility” with 600 inmates, 13 that all of the plaintiffs had signed all of the filings, and that nothing in the record 14 suggested that joint litigation would not be manageable. 570 F.3d at 156-57 & n.4. 15 At the district court level, decisions from a number of federal district courts, 16 including from this district, have come to the conclusion that severance – under Rule 21 17 – often is appropriate in multi-plaintiff prisoner cases, given the practical realities of 18 pursuing joint prison litigation within a large state prison system. See, e.g., Jarvis v. 19 Nye County Detention, No. 2:08-cv-01407-PMP-PAL, dkt. no. 14 (D. Nev. Feb. 6, 2009); 20 Davis v. United States, 2007 WL 2225791 (E.D. Cal. July 31, 2007); see also 21 Hershberger v. Evercom, Inc., 2008 WL 45693 (D. Kan. Jan. 2, 2008)(similar). 22 Under Rule 21, “the court may at any time, on just terms, add or drop a party” 23 and “may also sever any claim against a party.” Severance under Rule 21 is not limited 24 solely to curing misjoinder of parties, given that the rule explicitly provides that the court 25 may sever “any” claim against a party.4 Even if the standard for permissive joinder 26 27 28 4 See, e.g., Safeco Ins. Co. of America v. White House, Tenn., 36 F.3d 540, 54546 (6 Cir. 1994); United States v. O’Neil, 709 F.2d 361, 369 (5th Cir. 1983); Spencer, White and Prentis Inc. of Connecticut v. Pfizer, Inc., 498 F.2d 358, 361 (2d Cir. 1974); Sporia v. Pennsylvania Greyhound Lines, Inc., 143 F.2d 105 (3rd Cir. 1944); CVI/Beta th (fn. cont...) 6 1 under Rule 20(a) is satisfied, district courts have the discretion to refuse joinder and 2 sever claims in the interests of avoiding prejudice and delay, ensuring judicial economy, 3 or safeguarding principles of fundamental fairness.5 Claims may be severed if such 4 action will serve the ends of justice and further the prompt and efficient disposition of 5 the litigation.6 A district court has broad discretion with regard to severance of claims 6 under Rule 21.7 7 In the present case, the Court neither makes nor need make a categorical 8 holding for all prisoner cases to determine that severance is appropriate under Rule 21 9 in this case.8 The Court need not, and does not, hold that the PLRA repeals Rule 20. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (…fn. cont.) Ventures, Inc. v. Custom Optical Frames, Inc., 896 F.Supp. 505, 506 (D. Md. 1995); see also Acevedo-Garcia v. Monroig, 351 F.3d 547, 560 n.5 (1st Cir. 2003) (noting prevailing rule); see generally 7 C. Wright, et al., Federal Practice & Procedure: Civil § 1682, at 474 (3d ed. 2001) (“The application of Rule 21 has not been limited to cases in which parties were erroneously omitted from the action or technically misjoined contrary to one of the party joinder provisions in the federal rules.”); 4 J. Moore, Moore’s Federal Practice, § 21.02, at 21-3 (3d ed. 2013) (“The text of the Rule does not, however, limit its operation to such situations [of improper joinder of parties]. The courts have properly concluded that they may issue orders under Rule 21 even in the absence of misjoinder or nonjoinder of parties, to structure a case for the efficient administration of justice . . . .”). 5 E.g., Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516, 521-22 (5th Cir. 2010); cf. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1296 (9th Cir. 2000) (even when the requirements for permissive joinder under Rule 20(a) are met, a district court must examine whether joinder would comport with principles of fundamental fairness or would result in prejudice to either side). 6 E.g., CVI/Beta Ventures, Inc., 896 F.Supp. at 506. 7 See, e.g., Acevedo, 600 F.3d at 522 (“wide discretion”); see also Coleman, 232 F.3d at 1297 (“broad discretion,” in a Ninth Circuit case decided under Rule 20(b)); see generally 7 C. Wright, et al., Federal Practice & Procedure: Civil § 1689, at 515-16 (3d ed. 2001) (“Questions of severance are addressed to the broad discretion of the district court.”); 4 J. Moore, Moore’s Federal Practice § 21.02, at 21-10 (3d ed. 2013) (“The Rule vests great discretion in the court in determining whether . . . to order severance.”). 8 The Court has assumed, arguendo, that the requirements for permissive joinder under Rule 20(a) are satisfied in this case. The Court makes this arguendo assumption based upon the premise that all three plaintiffs have standing to pursue Count I despite the references to Quintero only. The Court has assumed arguendo in particular that the plaintiffs’ Count I claims: (a) arise out of the same occurrence or series of occurrences involved in the banning of inmate-led indoor services in the chapel in which all three plaintiffs otherwise would participate in one fashion or another; and (b) raise a common question of law as to whether the challenged action violates the First Amendment and RLUIPA. That said, the complaint asserts a number of claims that appear to concern only an individual plaintiff vis-à-vis having standing to pursue the claim. Counts II, III, V (fn. cont...) 7 1 The Court need not, and does not, hold that prisoners are not “persons” under Rule 20. 2 And the Court need not, and does not, hold that permissive joinder of multiple plaintiffs 3 in all prisoner litigation whatsoever is impractical without exception. 4 In the present case, practical difficulties that so often have been encountered in 5 the past in joint prison litigation in the large Nevada state prison system already have 6 become manifest. From the very outset, the Court was presented with a complaint 7 signed by only one plaintiff, on the erroneous premise that the complaint need be 8 signed only by a purported “writing plaintiff.” There is no such entity under federal civil 9 practice, and each plaintiff in a multi-party pro se case must sign each paper submitted. 10 If one pro se party instead signs for the others, he then engages in the unauthorized 11 practice of law, as only an attorney at law may sign a filing on behalf of another. 12 Accordingly, even after allowing for the fact that each plaintiff submitted a pauper 13 application, it is not entirely clear at this point in this case that each plaintiff in fact 14 authorized the pursuit of the claims and allegations actually presented in the complaint 15 submitted. 16 Moreover, Quintero now maintains that it has become “absolutely impossible” for 17 him to communicate with Klinke and Pope due to prison security level changes. 18 Quintero is not even certain where the other two inmates are in the facility. It therefore 19 will be exceedingly difficult, if not well-nigh impossible, to: (a) efficiently correct the 20 signature deficiency in the original complaint within the context of a multi-plaintiff case 21 22 23 24 25 26 27 28 (…fn. cont.) and VI all allege underlying factual circumstances involving only Quintero. Count IV initially alleges factual circumstances involving only Klinke, prior to conclusorily asserting a broad array of claims as to which it would appear probable that none of the plaintiffs have standing. Finally, Count VII pertains at least directly only to Pope, although the count perhaps ties in indirectly to the limitations on chapel use for “indoor religions” alleged in Count I. The mere fact that all of these diverse principally individual claims involve claims under the First Amendment and/or RLUIPA would appear to be insufficient to tie the claims together sufficiently for multi-party permissive joinder under Rule 20(a), separate and apart from the presence of Count I. Joinder of multiple unrelated claims by a single plaintiff of course is governed by the far more expansive provision in Rule 18. All such joinder, however, would appear to be subject to possible severance under Rule 21 where such severance is in the interests of justice and the efficient conduct of the litigation. 8 1 as opposed to severed actions; and (b) thereafter efficiently file further multi-plaintiff 2 papers in a joined action given that the plaintiffs are not in a position to effectively confer 3 with one another, review proposed papers, and sign the papers for filing. 4 Northern Nevada Correctional Center is a multi-purpose facility that is nearly 5 three times larger than the small, apparently single-purpose facility involved in Hagan. 6 One of the multiple purposes served by NNCC is that it functions as the intake center 7 for the northern region of the state. At any given time, inmates therefore may be subject 8 to any one of a number of widely varying classification levels within that single facility 9 alone. Inmates further may be transferred from NNCC to any one of five other 10 correctional facilities for males across the state, over and above numerous conservation 11 camps, all together collectively housing nearly 12,000 inmates. It is the Court’s 12 experience that such transfers can and do happen frequently over the course of the 13 extensive ongoing prisoner litigation in this district, a circumstance that, of course, is 14 compounded where more than one plaintiff is involved.9 15 The Court need not wait another two years into this case to find that the practical 16 difficulties that already have been manifesting themselves essentially from day one of 17 the case make joint pursuit of this matter in the interests of neither justice nor efficiency. 18 Ordering the prison law library to send copies of mailings from this Court to all three 19 plaintiffs will not address the practical difficulties identified herein. Nor is the Court 20 inclined on the current record to second-guess security and housing decisions made by 21 correctional officials in running a large statewide prison system solely because multiple 22 inmates have joined in a lawsuit, at least with respect to the particular assemblage of 23 claims raised in this litigation. 24 Severance not only will not prejudice the plaintiffs but further likely will benefit 25 each plaintiff, given the practical difficulties that already have arisen herein. Severance 26 27 28 9 For the particulars about the prison system, the Court takes judicial notice of the content on the state corrections department’s website, at http://www.doc.nv.gov/ , under “Facilities” as well as under “Statistics” under “About NDOC.” 9 1 will not prevent or impair their pursuit of the claims and relief sought in the joint action 2 instead in separate actions. Severance will mitigate rather than cause delay in 3 addressing their claims. 4 On the papers filed and in the circumstances presented in the instant case, the 5 Court therefore finds that the claims filed by the multiple plaintiffs should be severed into 6 separate actions pursuant to Rule 21, under the terms and conditions set forth at the 7 end of this order. 8 II. SCREENING The Court thereupon turns to initial review of Quintero’s claims, only. 9 10 When a “prisoner seeks redress from a governmental entity or officer or 11 employee of a governmental entity,” the court must “identify cognizable claims or 12 dismiss the complaint, or any portion of the complaint, if the complaint: (1) is frivolous, 13 malicious, or fails to state a claim upon which relief may be granted; or (2) seeks 14 monetary relief from a defendant who is immune from such relief.” 15 1915A(b). 28 U.S.C. § 16 In considering whether a plaintiff has stated a claim upon which relief can be 17 granted, all material factual allegations in the complaint are accepted as true for 18 purposes of initial review and are to be construed in the light most favorable to the 19 plaintiff. See, e.g., Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). However, 20 mere legal conclusions unsupported by any actual allegations of fact are not assumed 21 to be true in reviewing the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 677-81 (2009). 22 That is, conclusory assertions that constitute merely formulaic recitations of the 23 elements of a cause of action and that are devoid of further factual enhancement are 24 not accepted as true and do not state a claim. Id. 25 /// 26 /// 27 /// 28 /// 10 1 Further, the factual allegations must state a plausible claim for relief, meaning 2 that the well-pleaded facts must permit the court to infer more than the mere possibility 3 of misconduct: 4 5 6 7 8 9 10 11 12 13 14 15 [A] complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” [Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).] 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. Id., at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id., at 557, 127 S.Ct. 1955 (brackets omitted). . . . . [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.” Fed. Rule Civ. Proc. 8(a)(2). Iqbal, 556 U.S. at 678. Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). 16 Quintero’s claims are described in greater detail, supra, at 1-3 & 7 n.8. 17 Applying the foregoing standards, Counts I and II state claims under the First 18 Amendment and RLUIPA. 19 Count III does not state a claim upon which relief may be granted. Plaintiff refers 20 within the body of the count to an alleged deprivation of procedural due process. 21 However, an allegedly illegal loss or destruction of inmate property does not give rise to 22 a procedural due process claim, given the availability of state post-deprivation 23 remedies. See Hudson v. Palmer, 468 U.S. 517, 528 n.8 & 533 (1984); Parratt v. 24 Taylor, 451 U.S. 527, 543 (1981), overruled on other grounds by Daniels v. Williams, 25 474 U.S. 327(1986); N.R.S. 73.010; N.R.S. 41.031; N.R.S. 209.243. Otherwise, merely 26 because the plaintiff planned to use the property – here, a Latin language instructional 27 book and compact disc – for religious-related study does not elevate a simple loss of 28 property claim into a viable claim under the First Amendment or RLUIPA for a denial of 11 1 religious freedom. Nor does any alleged “destruction of government property” vis-à-vis 2 any alleged failure to properly maintain plaintiff’s inmate records give rise to any viable 3 constitutional claim. The Constitution does not authorize the federal courts to oversee 4 every jot and tittle of the minutiae of prison life, down to the accuracy and completeness 5 with which records are maintained concerning a lost or destroyed mail order for a 6 language book and CD. 7 Count IV is a severed claim pertaining to plaintiff Klinke. To the extent that Count 8 IV seeks to assert claims regarding religious access in a multitude of distinct 9 classification levels, Count IV does not reflect that plaintiff Quintero has standing to 10 raise such issues essentially as to every classification level at the facility. Count V, read very liberally at this juncture, states a claim upon which relief may 11 12 be granted under the First Amendment. Count VI states a claim upon which relief may be granted under the First 13 14 Amendment and RLUIPA. 15 Count VII is a severed claim pertaining to plaintiff Pope. 16 All claims seeking to pursue class action relief will be denied. A pro se litigant 17 may not maintain a class action because he has no authority as a non-attorney to assert 18 claims on the behalf of persons other than himself. See, e.g.,C.E. Pope Equity Trust v. 19 United States, 818 F.2d 696, 697 (9th Cir.1987); McShane v. United States, 366 F.2d 20 286, 288 (9th Cir. 1966); see also Russell v. United States, 308 F.2d 78, 79 (9th Cir. 21 1962). 22 III. CONCLUSION 23 IT IS THEREFORE ORDERED that the Clerk of Court shall file the complaint. 24 IT IS FURTHER ORDERED that all claims of the co-plaintiffs hereby are 25 SEVERED from one another, such that any and all claims by Klinke and Pope are 26 /// 27 /// 28 /// 12 1 severed from this action and from each other, including, but not limited to, in particular 2 Counts IV and VII, which no longer are pending in this action following the severance.10 3 IT IS FURTHER ORDERED that, accordingly, the Clerk: (1) shall open a 4 separate new civil action for co-plaintiff Klinke and co-plaintiff Pope, for a combined total 5 of two new civil actions under two new docket numbers; (2) shall assign the two new 6 actions to the same district judge and magistrate judge as in the present action, shall 7 generate the same internal P-flag assignment as in this action, and shall make 8 appropriate adjustments to both case-assignment “wheels” to compensate for such 9 assignment of the two new cases; (3) shall file a copy of the original complaint from this 10 action, the corresponding application to proceed in forma pauperis (e.g., file a copy of 11 Pope’s pauper application in the action opened for Pope), and this order in each such 12 record, with any appropriate modification to show the new docket number; and (4) shall 13 show that co-plaintiffs Klinke and Pope are terminated as parties in the present action, 14 such that plaintiff Quintero thereafter shall be the only plaintiff remaining as a current 15 party plaintiff in this action. 16 IT IS FURTHER ORDERED that the Clerk shall send to Klinke and Pope in each 17 such new action: (1) a copy of the standard paperwork indicating the docket number for 18 the newly-opened action; (2) a copy of this order; (3) a copy of the original complaint in 19 this matter, with any new docket number notation thereon; (4) two § 1983 complaint 20 forms; and (5) the instructions for the form. 21 IT IS FURTHER ORDERED that Klinke and Pope shall have thirty (30) days from 22 entry of a copy of this order in their severed individual action within which to file an 23 amended complaint that complies with the requirements stated below. 24 25 26 27 28 10 The Court expresses no opinion as to whether (a) claims by Klinke and Pope otherwise relate back to the claims in the complaint signed only by Quintero, or (b) administrative exhaustion by one former co-plaintiff satisfies the exhaustion requirement for the other plaintiffs. The Court holds here only that the severance, in and of itself, is without prejudice to any relation back or exhaustion that otherwise would apply. That is, relation back or exhaustion – if any – that was available prior to the severance remains available after the severance. Cf. Russell, 308 F.3d at 79 (no claim was before the court by the non-signing party). 13 1 IT IS FURTHER ORDERED that, in any amended complaint filed by Klinke and 2 Pope respectively in his individual action, the plaintiff: (1) shall list that plaintiff in the 3 caption of that action as the sole plaintiff in that action; (2) shall state, as to each 4 constitutional violation alleged, the actual, personal, and individualized injury sustained 5 by the individual plaintiff from specific incidents as a result of the alleged constitutional 6 violation; (3) shall clearly title the amended complaint as an amended complaint by 7 placing the word “AMENDED” immediately above “Civil Rights Complaint” on page 1 in 8 the caption and shall place the docket number of his action, above the word 9 “AMENDED” in the space for “Case No;” and (4) shall sign the complaint himself. The 10 Court informs all of the plaintiffs that under Local Rule LR 15-1 any amended complaint 11 filed must be complete in itself without reference to prior filings. Thus, any allegations, 12 parties, or requests for relief from prior papers that are not carried forward in an 13 amended complaint no longer will be before the Court in that action. The Court will 14 screen any claims by Klinke and Pope only after they file an individually signed 15 amended complaint in their own individual actions. 16 IT IS FURTHER ORDERED that in each such action, if the individual plaintiff fails 17 to fully and timely comply with all requirements of this order, that plaintiff’s action will be 18 dismissed without further advance notice. 19 IT IS FURTHER ORDERED that, in the present action: (a) Count III is 20 DISMISSED without prejudice for failure to state a claim upon which relief may be 21 granted; (b) all claims for class relief are DISMISSED; and (c) Counts IV and VII are 22 SEVERED from this action and/or fail to state a claim upon which relief may be granted 23 to plaintiff Quintero. The only claims that remain in this action are claims by Quintero 24 only under Counts I, II, V and VI. 25 IT IS FURTHER ORDERED that: 26 1. pauperis is DEFERRED. 27 28 A decision on Quintero’s application (dkt. no. 1) to proceed in forma /// 14 2. 1 This action is STAYED for ninety (90) days to allow plaintiff and 2 defendant(s) an opportunity to settle their dispute before an answer is filed 3 or the discovery process begins. During this ninety-day stay period, no 4 other pleadings or papers shall be filed in this case, and the parties shall 5 not engage in any discovery. The Court will decide whether this case will 6 be referred to the Court's Inmate Early Mediation Program, and the Court 7 will enter a subsequent order. Regardless, on or before ninety (90) days 8 from the date this order is entered, the Office of the Attorney General shall 9 file the report form attached to this order regarding the results of the 90- 10 day stay, even if a stipulation for dismissal is entered prior the end of the 11 90-day stay. If the parties proceed with this action, the Court then will 12 issue an order setting a date for the defendants to file an answer or other 13 response. 14 scheduling order setting discovery and dispositive motion deadlines. 3. 15 Following the filing of an answer, the Court will issue a "Settlement" may or may not include payment of money damages. It also 16 may or may not include an agreement to resolve plaintiff's issues 17 differently. 18 completely satisfied with the result, but both have given something up and 19 both have obtained something in return. 4. 20 A compromise agreement is one in which neither party is If the case does not settle, plaintiff will be required to pay the full $350.00 21 filing fee. This fee cannot be waived. If the plaintiff is allowed to proceed 22 in forma pauperis, the fee will be paid in installments from his prison trust 23 account. 28 U.S.C. § 1915(b). If plaintiff is not allowed to proceed in 24 forma pauperis, the $350.00 will be due immediately. 25 sufficient funds when his pauper application was filed, he may not deplete 26 such sufficient funds from his account prior to a ruling on the pauper 27 application. 28 /// 15 If plaintiff had 1 5. The Clerk shall electronically serve a copy of this order and a copy of 2 plaintiff's complaint on the Office of the Attorney General of the State of 3 Nevada, attention Kat Howe. 4 6. The Attorney General's Office shall advise the Court within twenty-one 5 (21) days of the date of the entry of this order whether it will enter a limited 6 notice of appearance on behalf of the defendants for the purpose of 7 settlement. No defenses or objections, including lack of service, shall be 8 waived as a result of the filing of the limited notice of appearance. 9 10 DATED THIS 1st day of July 2013. 11 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 JOHN QUINTERO, et al., Case No. 3:13-cv-00008-MMD-VPC 10 Plaintiffs, 11 12 13 REPORT OF THE OFFICE OF THE ATTORNEY GENERAL RE RESULTS OF THE 90-DAY STAY v. JACK PALMER, et al., Defendants. 14 15 16 NOTE: ONLY THE OFFICE OF THE ATTORNEY GENERAL SHALL FILE THIS FORM. THE INMATE PLAINTIFF SHALL NOT FILE THIS FORM. 17 On ________________ [the date of the issuance of the screening order], the 18 Court issued its screening order stating that it had conducted its screening pursuant to 19 28 U.S.C. § 1915A, and that certain specified claims in this case would proceed. The 20 Court ordered the Office of the Attorney General of the State of Nevada to file a report 21 ninety (90) days after the date of the entry of the Court’s screening order to indicate the 22 status of the case at the end of the 90-day stay. By filing this form, the Office of the 23 Attorney General hereby complies. 24 REPORT FORM 25 [Identify which of the following two situations (identified in bold type) describes the case, and follow the instructions corresponding to the proper statement.] 26 27 28 Situation One: Mediated Case: The case was assigned to mediation by a courtappointed mediator during the 90-day stay. [If this statement is accurate, check ONE of the six statements below and fill in any additional information as required, then proceed to the signature block.] 1 1 2 3 4 ____ A mediation session with a court-appointed mediator was held on _______________ [enter date], and as of this date, the parties have reached a settlement, even if paperwork to memorialize the settlement remains to be completed. (If this box is checked, the parties are on notice that they must SEPARATELY file either a contemporaneous stipulation of dismissal or a motion requesting that the Court continue the stay in the case until a specified date upon which they will file a stipulation of dismissal.) 5 6 7 8 9 10 ____ A mediation session with a court-appointed mediator was held on ________________ [enter date], and as of this date, the parties have not reached a settlement. The Office of the Attorney General therefore informs the Court of its intent to proceed with this action. ____ No mediation session with a court-appointed mediator was held during the 90-day stay, but the parties have nevertheless settled the case. (If this box is checked, the parties are on notice that they must SEPARATELY file a contemporaneous stipulation of dismissal or a motion requesting that the Court continue the stay in this case until a specified date upon which they will file a stipulation of dismissal.) 11 12 ____ No mediation session with a court-appointed mediator was held during the 90-day stay, but one is currently scheduled for ________________ [enter date]. 13 14 ____ No mediation session with a court-appointed mediator was held during the 90-day stay, and as of this date, no date certain has been scheduled for such a session. 15 16 17 18 19 20 ____ None of the above five statements describes the status of this case. Contemporaneously with the filing of this report, the Office of the Attorney General of the State of Nevada is filing a separate document detailing the status of this case. ***** Situation Two: Informal Settlement Discussions Case: The case was NOT assigned to mediation with a court-appointed mediator during the 90-day stay; rather, the parties were encouraged to engage in informal settlement negotiations. [If this statement is accurate, check ONE of the four statements below and fill in any additional information as required, then proceed to the signature block.] 21 22 23 24 ____ The parties engaged in settlement discussions and as of this date, the parties have reached a settlement, even if the paperwork to memorialize the settlement remains to be completed. (If this box is checked, the parties are on notice that they must SEPARATELY file either a contemporaneous stipulation of dismissal or a motion requesting that the Court continue the stay in this case until a specified date upon which they will file a stipulation of dismissal.) 25 26 ____ The parties engaged in settlement discussions and as of this date, the parties have not reached a settlement. The Office of the Attorney General therefore informs the Court of its intent to proceed with this action. 27 28 ____ The parties have not engaged in settlement discussions and as of this date, the parties have not reached a settlement. The Office of the Attorney 2 1 General therefore informs the Court of its intent to proceed with this action. 2 3 4 ____ None of the above three statements fully describes the status of this case. Contemporaneously with the filing of this report, the Office of the Attorney General of the State of Nevada is filing a separate document detailing the status of this case. 5 Submitted this _______ day of __________________, ______ by: 6 Attorney Name: ________________________ Print __________________________ Signature Address: __________________________ Phone: ____________________ __________________________ Email: _____________________ 7 8 9 __________________________ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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