Whitlock et al v. Curry County Detention Center et al
Filing
24
ORDER DISMISSING CASE by District Judge Margaret I. Strickland. (gri)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JIMMY WHITLOCK, et al.,
Plaintiffs,
v.
No. 23-cv-1026-MIS-LF
CURRY COUNTY DETENTION CENTER, et al.,
Defendants.
ORDER DISMISSING CASE
This matter is before the Court on the Prisoner Civil Rights Complaints and supplemental
filings in this case, which were filed by or on behalf of the following inmate-plaintiffs: Jimmy
Whitlock; Shaun Acy; Charles Kirven; Corey Dixon; Chancy Johnson; Ceci Cooper; and Ismael
Acy. See ECF Nos. 1, 5, 7-10, 13, 14, 16, 18, 19, 21. The pleadings raise 42 U.S.C. § 1983 claims
challenging the inmates’ confinement at the Curry County Detention Center (CCDC), and in
particular, the alleged failure to accommodate their religious diet. At least three of the inmateplaintiffs are detained at CCDC. Two inmate-plaintiffs are incarcerated at different prisons, and
Ceci Cooper severed contact with the Court after his release. See ECF No. 11. As a threshold
issue, the Court must determine whether it is feasible for multiple inmate-plaintiffs to prosecute
this case.
Fed. R. Civ. P. 20 governs the joinder of multiple plaintiffs. The Court, in its discretion,
may permit a joinder where all claims arise from the same transaction/occurrence and share at least
one question of law or fact. See Rule 20(a)(1); Hefley v. Textron, Inc., 713 F.2d 1487, 1499 (10th
Cir. 1983) (permissive joinder is a matter of discretion).
Even where these requirements are met, the Court may disallow a joinder based on the
inherent impracticalities associated with pro se prisoner litigation. See Bourn v. Geo Grp., Inc.,
Civil Action No. 11–cv–02628–BNB, 2012 WL 451286, at *2 (D. Colo. Feb. 13, 2012) (“Many
federal district courts have found that the pervasive impracticalities associated with multipleplaintiff prisoner litigation militate against permissive joinder otherwise allowed by Fed. R. Civ.
P. 20(a)(1)”); Hollins v. KDOC Staff, CASE NO. 24-3134-JWL, 2024 WL 4836237, at *3 (D. Kan.
Nov. 20, 2024) (“In the context of prisoner litigation specifically, district courts also have found
that the impracticalities inherent in multiple-plaintiff lawsuits militate against permissive joinder
otherwise allowed by Rule 20(a)(1)”); Adams v. GEO Grp., Inc., Case No. CIV-21-297-D, 2021
WL 2407436, at *1 (W.D. Okla. Apr. 13, 2021) (same); Bastian v. Jaramillo, Civ. No. 21-350
WJ/JFR, 2023 WL 4182806, at *2 (D.N.M. June 21, 2023) (same). If multiple plaintiffs proceed
in one case, for example, “any pleading filed [would need to] bear [each of] their signatures
pursuant to [Fed. R. Civ. P.] 11(a).” Bastian, 2023 WL 4182806, at *2. Prison transfers “could,
at any time, restrict interpersonal communication between Plaintiffs,” preventing “them from …
conferring with one another, reviewing proposed pleadings [to comply with Rule 11], and …
meet[ing] the court’s deadlines.” Dill v. Thomas, CIV-23-875-D, 2023 WL 8115921, at *1–2
(W.D. Okla. Oct. 31, 2023). See also Pinson v. Whetsel, No. CIV-06-1372-F, 2007 WL 428191,
at *1 (W.D. Okla. Feb. 1, 2007) (“If one inmate is moved during the course of the litigation, the
court may find itself in the position of ordering prison officials to allow co-plaintiff inmates to
correspond with each other, in derogation of a … legitimate prison policy.”).
“A prisoner litigating jointly under Rule 20 [also] takes th[e] risks for all claims in the
complaint, whether or not they concern him personally.” Boriboune v. Berge, 391 F.3d 852, 855
(7th Cir. 2004) (emphasis in original). This means that if the inmate-plaintiffs are proceeding in
forma pauperis – which is true in the vast majority of cases – they could all accrue strikes under
28 U.S.C. § 1915(g) if the complaint is dismissed for failure to state a cognizable claim. Id.
2
(explaining the risk that one plaintiff would accrue a strike by signing another plaintiff’s filing);
28 U.S.C. § 1915(g) (noting inmate-plaintiffs accrue a strike each time their case is dismissed for
failure to state a cognizable claim and that they cannot proceed in forma pauperis after accruing
three strikes). Finally, “multiple-plaintiff prisoner litigation also raises concerns that pro se
prisoner plaintiffs might be seeking to impermissibly provide legal assistance to each other in
pursuing their claims.” Hunnicutt v. Smith, Civ. No. 18-619 JCH/GBW, 2021 WL 3618315, at
*20–21 (D.N.M. Aug. 16, 2021) (quotations omitted).
The filings here implicate a number of these concerns. The inmate-plaintiffs did not all
sign one pleading, nor did they each sign their own pleading limited to their specific claims.
Instead, different subsets of inmate-plaintiffs filed different pleadings, making it impossible to
discern the scope of the joined claims. As noted above, the inmate-plaintiffs are housed in at least
three different facilities, and one severed contact. Based on a name disparity, it is also unclear
how many inmate-plaintiffs seek to prosecute the claims. The opening pleading lists the name of
one plaintiff as Ismael Acy. See ECF No. 1. A later motion was filed by Shaun Acy, see ECF No.
13, and another complaint lists both Ismael Acy and Shaun Acy as plaintiffs, see ECF No. 16. For
all of these reasons, the Court finds joinder is impractical in this case.
Courts take different approaches where, as here, inmate-plaintiffs are not permitted to
proceed together under Rule 20. Some courts dismiss the entire case and require each plaintiff to
file a new case. See, e.g., Hollins, 2024 WL 4836237, at *3 (noting the case featuring multiple
inmate-plaintiffs “may not proceed as filed and is dismissed without prejudice”). If there is one
primary filer among the inmate-plaintiffs, some courts permit that filer to proceed in the original
action and dismiss the claims of the other-inmate plaintiffs without prejudice to refiling. See, e.g.,
Gentry v. Lawton Corr. Facility, No. CIV–14–310–W, 2014 WL 2712305, at *2 (W.D. Okla. May
3
13, 2014) (noting one plaintiff “has been the dominate filer thus far” and that the other plaintiff
should be “dismissed from the action and be instructed that if he wishes to pursue his claims, he
must file an independent action”).
There is no primary filer in this case. Jimmy Whitlock, Charles Kirven, Chancy Johnson,
Corey Dixon, and Shaun Acy have all submitted or signed multiple pleadings. The Court also
notes that dismissing the claims and requiring each inmate-plaintiff to file their own case will not
result in any prejudice. The claims arose in July of 2023 and are not time-barred. See ECF No. 1
at 3 (noting the date); Varnell v. Dora Consol. Sch. Dist., 756 F.3d 1208, 1212 (10th Cir. 2014)
(“[F]or § 1983 claims arising in New Mexico the limitations period is three years”). Moreover,
none of the inmate-plaintiffs have paid a fee in this case, as the Court deferred collecting any initial
partial filing fees until after making a determination on the proposed joinder.
The Court will therefore dismiss this case, and each pleading herein, without prejudice.
Each inmate-plaintiff must file a new case limited to their own claims, if they wish to continue
litigating. If any inmate-plaintiff continues to file amended pleadings in this closed case, the Court
may direct the Clerk’s Office to open a new case for that individual. Finally, the Court will deny
all pending motions (ECF Nos. 6, 9, 10, 13, 15, 17, 20, and 22) as moot and without prejudice to
refiling in the new case.
IT IS ORDERED that all claims in the above-captioned case are DISMISSED without
prejudice; all pending motions (ECF Nos. 6, 9, 10, 13, 15, 17, 20, and 22) are DENIED without
prejudice; and the Court will enter a separate judgment closing the civil case.
………………………………………….
MARGARET STRICKLAND
UNITED STATES DISTRICT JUDGE
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?