THOMAS v. FORMICA et al

Filing 2

MEMORANDUM OPINION. Signed by Judge Noel L. Hillman on 11/18/2013. (bdk, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SHARRIK S. MOLLEY, et al.,
Plaintiffs,
v.
FRANK D. FORMICA, et al.,
Defendants.

APPEARANCES:
Sharrik S. Molley
Shawn Braxton
Abdul Sanderlin
Khalif Davis
Nolan Mitchell
Shawn Williams
Wayne Crymes
Camargo Luis
Rafael Colon
Ibr Abdullah
Johnny Cobb
Erving Johnson
Michael Pope
William Andrews
Jose Mendez
Andrew Garland
Michael Robinson
Javon Figueroa
Alex Caraballo
Elliot Rodrigez
Stanley Streeter
Darryl Bradley
Alfredo Vazquez
Darnell Jordan

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Civil Action No. 13-5013(NLH)

MEMORANDUM OPINION

Andre S. Smith
Allan Small
Naquay Buffert-Smith
Keith Kinsey
Dashawn Cooper
Howard Dunns
William Amaya
Carl Thomas
Julian Hamlett
at
Atlantic County Justice Facility
5060 Atlantic Ave.
Mays Landing, NJ 08330
Plaintiffs pro se

HILLMAN, District Judge
Thirty-three co-plaintiffs, prisoners confined at Atlantic
County Justice Facility in Mays Landing, New Jersey, seek to
bring this civil action in forma pauperis, without prepayment of
fees or security, asserting claims pursuant to 42 U.S.C. ' 1983.
These co-plaintiffs challenge various aspects of their
confinement, including the lack of a law library or paralegals,
the assessment of “rent” charges, high prices at the commissary,
and an expensive telephone system.

The Complaint is written in

the first person singular, e.g., “I don’t have access to a
paralegal, a computer, law books,” and is signed by Plaintiff
Shar-rik S. Molley.

An attachment is signed by the additional

co-plaintiffs.
A.

Joinder Considerations
In Hagan v. Rogers, 570 F.3d 146 (3d Cir. 2009), the Court

of Appeals for the Third Circuit held that in forma pauperis
2

prisoners are not categorically barred from joining as coplaintiffs under Rule 20 of the Federal Rules of Civil
Procedure.

Rule 20 provides the following regarding permissive

joinder of parties:
(1)

(2)

Plaintiffs. Persons may join in one action
as plaintiffs if:
(A) they assert any right to relief
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 plaintiffs will arise in the
action.
Defendants. 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.

Fed.R.Civ.P. 20(a).
The requirements prescribed by Rule 20(a) are to be
liberally construed in the interest of convenience and judicial
economy.

Swan v. Ray, 293 F.3d 1252, 1253 (11th Cir. 2002).

However, the policy of liberal application of Rule 20 is not a
license to join unrelated claims and defendants in one lawsuit.
See, e.g., Pruden v. SCI Camp Hill, 252 Fed.Appx. 436 (3d Cir.
2007); George v. Smith, 507 F.3d 605 (7th Cir. 2007); Coughlin

3

v. Rogers, 130 F.3d 1348 (9th Cir. 1997).
Pursuant to Rule 21, misjoinder of parties is not a ground
for dismissing an action.

Instead, a court faced with a

complaint improperly joining parties “may at any time, on just
terms, add or drop a party.
against a party.”

The court may also sever any claims

Fed.R.Civ.P. Rule 21.

“In exercising its discretion [whether to permit joinder],
the District Court must provide a reasoned analysis that
comports with the requirements of the Rule, and that is based on
the specific fact pattern presented by the plaintiffs and claims
before the court.”

Hagan, 540 F.3d at 157.

Here, in addition to the general claims regarding the
conditions of confinement, the co-plaintiffs assert that they
are deprived of a library and paralegals, allegations which this
Court construes as asserting a claim that the Defendants are
violating the co-plaintiffs’ constitutional right of access to
the courts.
The constitutional right of access to the courts is an
aspect of the First Amendment right to petition the government
for redress of grievances.

Bill Johnson’s Restaurants, Inc. v.

NLRB, 461 U.S. 731, 741 (1983), cited in Woodford v. Ngo, 548
U.S. 81, 122 (2006).

In addition, the constitutional guarantee

of due process of law has as a corollary the requirement that
prisoners be afforded access to the courts in order to challenge
4

unlawful convictions and to seek redress for violations of their
constitutional rights.

See Bermudez v. Essex County D.O.C.,

Civil No. 12-6035, 2013 WL 1405263, *6 n.7 (D.N.J. Apr. 4, 2013)
(citing Procunier v. Martinez, 416 U.S. 396, 419 (1974),
overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401,
413-14 (1989)); Paladino v. Newsome, Civil No. 12-2021, 2012 WL
3315571, *10 (D.N.J. Aug. 13, 2012) (same).

See also Peterkin

v. Jeffes, 855 F.2d 1021, 1036 n.18 (3d Cir. 1988) (chronicling
various constitutional sources of the right of access to the
courts).
In Bounds v. Smith, 430 U.S. 817, 828 (1977), the Supreme
Court held that “the fundamental constitutional right of access
to the courts requires prison authorities to assist inmates in
the preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law.”

The right of

access to the courts is not, however, unlimited.

“The tools

[that Bounds] requires to be provided are those that the inmates
need in order to attack their sentences, directly or
collaterally, and in order to challenge the conditions of their
confinement.

Impairment of any other litigating capacity is

simply one of the incidental (and perfectly constitutional)
consequences of conviction and incarceration.”
518 U.S. 343, 355 (1996) (emphasis in original).

Lewis v. Casey,

5

See generally

Diaz v. Holder, No. 13-1869, 2013 WL 3822412 (3d Cir. July 25,
2013) (discussing Bounds and Lewis).
Moreover, a prisoner alleging a violation of his right of
access must show that prison officials caused him past or
imminent “actual injury.”

See Lewis, 518 U.S. at 348-55 and n.3

(1996); Oliver v. Fauver, 118 F.3d 175, 177-78 (3d Cir. 1997).
There is no “abstract, freestanding right to a law library or
legal assistance, [and] an inmate cannot establish relevant
actual injury simply by establishing that his prison’s law
library or legal assistance program is subpar in some
theoretical sense.

...

[T]he inmate therefore must go one step

further and demonstrate that the alleged shortcomings in the
library or legal assistance program hindered his efforts to
pursue a [non-frivolous] legal claim.

He might show, for

example, that a complaint he prepared was dismissed for failure
to satisfy some technical requirement which, because of
deficiencies in the prison’s legal assistance facilities, he
could not have known.

Or that he had suffered arguably

actionable harm that he wished to bring before the courts, but
was so stymied by inadequacies of the law library that he was
unable to file even a complaint.”

Lewis, 518 U.S. at 351.

The Court of Appeals for the Third Circuit has held that
this requirement to show “actual injury” renders claims of
denial of the right of access to the courts inappropriate for
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joinder.

See Blood v. Federal Bureau of Prisons, 351 F.App’x

604 (3d Cir. 2009).

Accordingly, this Court will dismiss from

this action all co-plaintiffs except the first-named coplaintiff, Shar-rik Molley, and will direct the Clerk of the
Court to open a new and separate civil action for each such
dismissed co-plaintiff. 1

Each co-plaintiff will be permitted to

apply for leave to proceed in forma pauperis 2 and to submit his
own complaint asserting his individual claims, including his own
individual access-to-courts claim. 3

1

The Court notes that other considerations also militate in
favor of severance. For example, although failure to exhaust
administrative remedies with respect to claims regarding prison
conditions, as required by 42 U.S.C. § 1997e(a), is an
affirmative defense which generally must be pled by the
defendant, exhaustion of administrative remedies by one prisoner
does not meet the exhaustion requirement for multiple prisoner
plaintiffs seeking to join in one action. Thus, joinder may not
be appropriate where a separate determination is required as to
whether each co-plaintiff has complied with the exhaustion
requirement. See, e.g., Lilly v. Ozmint, Civil No. 07-1932,
2007 WL 2022190 (D.S.C. July 11, 1007); Worthen v. Oklahoma
Dept. of Corrections, Civil No. 07-0687, 2007 WL 4563665, *3
(W.D. Okla. Dec. 7, 2007), Report and Recommendation Adopted in
pertinent part, 2007 WL 4563644 (W.D. Okla. Dec. 20, 2007).
2

This requirement that each plaintiff apply for leave to proceed
in forma pauperis in his separate action, or prepay the filing
fee and administrative fee, does not impose any additional
financial burden on the plaintiffs because, even if this case
had proceeded as filed, each co-plaintiff would have been
required to apply separately for leave to proceed in forma
pauperis and would have been assessed, individually, the full
filing fee. See Hagan v. Rogers, 570 F.3d 146 (3d Cir. 2009).
3

This Court can consider at a later date whether consolidation
of similar conditions-of-confinement claims would be
appropriate. See generally Fed.R.Civ.P. Rule 42.
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B.

The Filing Fee
This Court must now consider whether the remaining

plaintiff in this action, Shar-rik Molley, has satisfied the
filing fee requirement.
Pursuant to Local Civil Rule 54.3, the Clerk shall not be
required to enter any suit, file any paper, issue any process,
or render any other service for which a fee is prescribed,
unless the fee is paid in advance.

Under certain circumstances,

however, this Court may permit an indigent plaintiff to proceed
in forma pauperis.
The entire fee to be paid in advance of filing a civil
complaint is $400.

That fee includes a filing fee of $350 plus

an administrative fee of $50, for a total of $400.

A prisoner

who is granted in forma pauperis status will, instead, be
assessed a filing fee of $350 and will not be responsible for
the $50 administrative fee.

A prisoner who is denied in forma

pauperis status must pay the full $400, including the $350
filing fee and the $50 administrative fee, before the complaint
will be filed.
Title 28 U.S.C. ' 1915, establishes certain financial
requirements for prisoners who are attempting to bring a civil
action in forma pauperis.

Under § 1915, a prisoner seeking to

bring a civil action in forma pauperis must submit an affidavit,
including a statement of all assets and liabilities, which
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states that the prisoner is unable to pay the fee.
' 1915(a)(1).

28 U.S.C.

The prisoner also must submit a certified copy of

his inmate trust fund account statement(s) for the six-month
period immediately preceding the filing of his complaint.
U.S.C. ' 1915(a)(2).

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The prisoner must obtain this certified

statement from the appropriate official of each correctional
facility at which he was or is confined during such six-month
period.

Id.

If the prisoner is granted in forma pauperis status, the
prisoner must pay the full amount of the $350 filing fee, in
installments, as follows.

28 U.S.C. ' 1915(b)(1).

In each month

that the amount in the prisoner=s account exceeds $10.00, until
the $350.00 filing fee is paid, the agency having custody of the
prisoner shall assess, deduct from the prisoner=s account, and
forward to the Clerk of the Court an installment payment equal
to 20 % of the preceding month=s income credited to the prisoner=s
account.

28 U.S.C. ' 1915(b)(2).

Here, only one co-plaintiff, Shar-rik Molley, submitted an
application for leave to proceed in forma pauperis.

Plaintiff

Molley may not have known when he submitted his complaint that
even if the full filing fee, or any part of it, has been paid,
the Court must dismiss the case if it finds that the action:
(1) is frivolous or malicious; (2) fails to state a claim upon
which relief may be granted; or (3) seeks monetary relief
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against a defendant who is immune from such relief.
' 1915(e)(2)(B) (in forma pauperis actions).

28 U.S.C.

See also 28 U.S.C.

' 1915A (dismissal of actions in which prisoner seeks redress
from a governmental defendant); 42 U.S.C. ' 1997e (dismissal of
prisoner actions brought with respect to prison conditions).

If

the Court dismisses the case for any of these reasons, § 1915
does not suspend installment payments of the filing fee or
permit the prisoner to get back the filing fee, or any part of
it, that has already been paid.
If any prisoner has, on three or more prior occasions while
incarcerated, brought in federal court an action or appeal that
was dismissed on the grounds that it was frivolous or malicious,
or that it failed to state a claim upon which relief may be
granted, he cannot bring another action in forma pauperis unless
he is in imminent danger of serious physical injury.

28 U.S.C.

' 1915(g).
Plaintiff Molley’s application is deficient, in that the
institutional account statement is not certified by an
appropriate institutional official as required by 28 U.S.C.
§ 1915(a).

Accordingly, this Court will deny the application

without prejudice and will administratively terminate this
action for failure to satisfy the filing fee requirement.

See,

e.g., Hairston, Sr. v. Gronolsky, 348 F.App’x 716 (3d Cir. 2009)
(affirming administrative termination of prisoner civil rights
10

action for failure to comply with requirements of § 1915); Tyson
v. Youth Ventures, L.L.C., 42 F.App’x 221 (10th Cir. 2002)
(affirming dismissal without prejudice of civil action where
prisoner submitted only uncertified copy of institutional
account statement); Johnson v. United States, 79 Fed.Cl. 769
(2007) (same).

See also Rohn v. Johnston, 415 F.App’x 353, 354-

55 (3d Cir. 2011) (affirming dismissal without prejudice of
civil action where prisoner failed to submit the required
affidavit of poverty).
Plaintiff Molley will be granted leave to apply to re-open
this matter by either prepaying the filing fee and
administrative fee or by submitting separate and complete
individual applications for leave to proceed in forma pauperis.
To the extent any co-plaintiff asserts that correctional
officials have refused to provide the certified account
statement, any such assertion must be supported by an affidavit
detailing the circumstances of the co-plaintiff’s request for a
certified institutional account statement and the correctional
officials= refusal to comply, including the dates of such events
and the names of the individuals involved.
The allegations of the Complaint do not suggest that any
co-plaintiff is in imminent danger of serious physical injury.
See 28 U.S.C. § 1915(g).

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CONCLUSION
For the reasons set forth above, (a) all co-plaintiffs
except Shar-rik Molley will be dismissed from this action and
the Clerk of the Court will be directed to open a new and
separate civil action for each such dismissed co-plaintiff, and
(b) plaintiff Molley=s application for leave to proceed in forma
pauperis will be denied without prejudice and (c) the Clerk of
the Court will be ordered to administratively terminate this
action, without filing the complaint or assessing a filing fee. 4
Plaintiff Molley will be granted leave to apply to re-open
within 30 days.
An appropriate Order will be entered.

At Camden, New Jersey

Dated:

s/ Noel L. Hillman
Noel L. Hillman
United States District Judge

November 18, 2013

4

Such an administrative termination is not a “dismissal” for
purposes of the statute of limitations, and if the case is reopened pursuant to the terms of the accompanying Order, it is
not subject to the statute of limitations time bar if it was
originally filed timely. See Houston v. Lack, 487 U.S. 266
(1988) (prisoner mailbox rule); Papotto v. Hartford Life & Acc.
Ins. Co., 731 F.3d 265, 275-76 (3d Cir. 2013) (collecting cases
and explaining that a District Court retains jurisdiction over,
and can re-open, administratively closed cases).
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