BURGESS v. WILLIAMS

Filing 7

MEMORANDUM OPINION AND ORDER as set out signed by MAG/JUDGE L. PATRICK AULD on 11/2/11. (Wilson, JoAnne)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ALBERT C. BURGESS, JR.,
Plaintiff,
v.
DAVID B. WILLIAMS, et al.,
Defendant(s).

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1:11CV316

MEMORANDUM OPINION AND ORDER
This

case

comes

before

the

undersigned

United

States

Magistrate Judge for review of Plaintiff’s “Amended ComplaintObjection to Order of this Court” (Docket Entry 5), pursuant to 28
U.S.C. § 1915A(a) and (b).

For the reasons that follow:

1) for each of the 33 “Counts” or “Claims” in the “Amended
Complaint-Objection to Order of this Court” (see Docket Entry 5,
¶¶ 6-235) that Plaintiff wishes to pursue, he will be ordered to
submit:

A) a separate, new complaint; and B) either a $350.00

filing fee or an application to proceed as a pauper;
2) Plaintiff will be ordered to file a separate memorandum of
not more than five pages with each new complaint as to “Count One”
(id., ¶¶ 6-16), “Count Two” (id., ¶¶ 17-22), “Count Three” (id.,
¶¶ 23-37), “Claim Four” (id., ¶¶ 38-45), “Claim Five” (id., ¶¶ 4655), “Claim Seven” (id., ¶¶ 63-69), “Claim Eleven” (id., ¶¶ 86-93),
“Claim Twelve” (id., ¶¶ 94-100), “Claim Thirteen” (id., ¶¶ 101-05),
“Claim Twenty” (id., ¶¶ 142-47), “Claim Twenty One” (id., ¶¶ 148-

52), or “Claim Twenty Five” (id., ¶¶ 169-77) of the “Amended
Complaint-Objection to Order of this Court,” and to show cause in
each such memorandum why each such new complaint should not be
transferred to another district via 28 U.S.C. § 1406(a);
3) Plaintiff will be ordered to file a separate memorandum of
not more than five pages along with each new complaint as to “Claim
Twenty Nine” (Docket Entry 5, ¶¶ 196-201), “Claim Thirty” (id.,
¶¶ 202-07), or “Claim Thirty One” (id., ¶¶ 208-13) of the “Amended
Complaint-Objection to Order of this Court,” and to show cause in
each such memorandum why each such new complaint should not be
dismissed

for

want

of

subject

matter

jurisdiction

due

to

Plaintiff’s lack of standing;
4) Plaintiff will be ordered to file a separate memorandum of
not more than five pages along with each new complaint as to “Claim
Nine”

(id.,

¶¶

79-82),

“Claim

Ten”

(id.,

¶¶

83-85),

“Claim

Thirteen” (id., ¶¶ 101-05), “Claim Fourteen” (id., ¶¶ 106-10),
“Claim Fifteen” (id., ¶¶ 111-20), “Claim Sixteen” (id., ¶¶ 121-25),
“Claim Seventeen” (id., ¶¶ 126-32), “Claim Eighteen” (id., ¶¶ 13336), “Claim Nineteen” (id., ¶¶ 137-41), “Claim Twenty” (id.,
¶¶ 142-47), “Claim Twenty One” (id., ¶¶ 148-52), “Claim Twenty Two”
(id., ¶¶ 153-57), “Claim Twenty Three” (id., ¶¶ 158-65), “Claim
Twenty Five” (id., ¶¶ 169-77), “Claim Twenty Six” (id., ¶¶ 178-83),
“Claim Twenty Nine” (id., ¶¶ 196-201), or “Claim Thirty Three”
(id., ¶¶ 226-30) of the “Amended Complaint-Objection to Order of

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this Court,” and to show cause in each such memorandum why each
such new complaint should not be dismissed for want of subject
matter jurisdiction due to the fact that each such “Claim” asserts
only state law causes of action and lacks sufficient allegations to
support the Court’s exercise of diversity jurisdiction under 28
U.S.C. § 1332(a);
5) Plaintiff will be ordered to include factual allegations as
to the place(s) of occurrence of the events alleged in “Claim Six”
(Docket Entry 5, ¶¶ 56-62), “Claim Eight” (id., ¶¶ 70-78), “Claim
Nine”

(id.,

¶¶

79-82),

“Claim

Ten”

(id.,

¶¶

83-85),

“Claim

Fourteen” (id., ¶¶ 106-10), “Claim Fifteen” (id., ¶¶ 111-20),
“Claim Sixteen” (id., ¶¶ 121-25), “Claim Seventeen” (id., ¶¶ 12632), “Claim Eighteen” (id., ¶¶ 133-36), “Claim Nineteen” (id.,
¶¶ 137-41), “Claim Twenty Two” (id., ¶¶ 153-57), “Claim Twenty
Three” (id., ¶¶ 158-65), “Claim Twenty Four” (id., ¶¶ 166-68),
“Claim Twenty Five” (id., ¶¶ 169-77), “Claim Twenty Six” (id.,
¶¶ 178-83), “Claim Twenty Seven” (id., ¶¶ 184-87), “Claim Twenty
Eight” (id., ¶¶ 188-95), “Claim Thirty Two” (id., ¶¶ 214-25), or
“Claim Thirty Three” (id., ¶¶ 226-30) of the “Amended ComplaintObjection to Order of this Court,” in each new complaint as to each
such “Claim”;
6) Plaintiff will be ordered to include factual allegations as
to the time(s) of occurrence of events alleged in “Count Three”
(id., ¶¶ 23-37), “Claim Four” (id., ¶¶ 38-45), “Claim Five” (id.,

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¶¶ 46-55), “Claim Six” (id., ¶¶ 56-62), “Claim Eight” (id., ¶¶ 7078), “Claim Nine” (id., ¶¶ 79-82), “Claim Ten” (id., ¶¶ 83-85),
“Claim Twelve” (id., ¶¶ 94-100), “Claim Thirteen” (id., ¶¶ 101-05),
“Claim Fourteen” (id., ¶¶ 106-10), “Claim Fifteen” (id., ¶¶ 11120), “Claim Sixteen” (id., ¶¶ 121-25), “Claim Seventeen” (id.,
¶¶ 126-32), “Claim Eighteen” (id., ¶¶ 133-36), “Claim Nineteen”
(id., ¶¶ 137-41), “Claim Twenty” (id., ¶¶ 142-47), “Claim Twenty
One” (id., ¶¶ 148-52), “Claim Twenty Two” (id., ¶¶ 153-57), “Claim
Twenty Three” (id., ¶¶ 158-65), “Claim Twenty Four” (id., ¶¶ 16668), “Claim Twenty Six” (id., ¶¶ 178-83), “Claim Twenty Eight”
(id., ¶¶ 188-95), “Claim Thirty Two” (id., ¶¶ 214-25), or “Claim
Thirty Three” (id., ¶¶ 226-30) of the “Amended Complaint-Objection
to Order of this Court,” in each new complaint as to each such
“Count” or “Claim”; and
7) the portion of the “Amended Complaint-Objection to Order of
this Court” that falls under the heading “Objections to the Order
of this Court” (id. at 46-47 (with paragraphs numbered one through
seven))1 will be disregarded as an untimely objection to a nondispositive, pretrial ruling by a United States Magistrate Judge
under Federal Rule of Civil Procedure 72(a).

1

Because Plaintiff commenced a new paragraph-numbering sequence under said
heading, the Court will cite to page numbers (rather than to paragraph numbers)
as to that portion of the “Amended Complaint-Objection to Order of this Court”
in an effort to minimize confusion.

-4-

BACKGROUND
“On November 18, 2009, [Plaintiff] was convicted, after a
trial by jury, of violating 18 U.S.C. § 2252(a)(4)(B) and 18 U.S.C.
§ 2252(a)(2).”

Burgess v. United States, No. 1:09CV451-1-MU, 2010

WL 92441, at *1 (W.D.N.C. Jan. 6, 2010) (unpublished).

He has

since remained “in custody based upon [those] conviction[s] in the
Western District of North Carolina . . . [for which he] was
sentenced to a total of 292 months’ imprisonment.”

Burgess v.

Lappin, C/A No. 2:11-2074-CMC-BHH, 2011 WL 4950061, at *2 (D.S.C.
Oct. 18, 2011) (unpublished).

Plaintiff “is well-versed in the

filing requirements of a variety of actions in the courts, having
filed

over

thirty

Carolina] alone.”

(30)

actions

in

th[e]

District

[of

South

Id. at *2 n.4.

Those filings in the District of South Carolina included a
case Plaintiff brought “under 42 U.S.C. § 1983 on April 4, 2002.”
Burgess v. Taylor, No. C/A 8:02-1090-22, 2003 WL 22937930, at *1
(D.S.C. Mar. 18, 2003) (unpublished), aff’d, 67 Fed. Appx. 820 (4th
Cir. 2003).

“At that time, Plaintiff was incarcerated by the

United States Bureau of Prisons . . . pursuant to [an] order
revoking [his] supervised release . . . dated September 21, 2001.”
Id. at *1 n.1.2

A United States Magistrate Judge “recommend[ed]

2
Said term of supervised release arose from a federal perjury conviction
Plaintiff obtained in connection with federal litigation he pursued while serving
a state prison sentence. See Burgess, 2003 WL 22937930, at *2 (“[O]n August 20,
1985, . . . [Plaintiff] entered a plea in state court of ‘guilty but mentally
ill’ to various charges of criminal sexual conduct involving minors. He was

(continued...)
-5-

that [said] action be dismissed for failure to state a claim.” Id.
at *5.

The assigned United States District Judge “agree[d] with

the conclusions and reasoning of the Magistrate Judge . . . [and]
the Report and Recommendation of the Magistrate Judge [wa]s adopted
. . . .”

Id. at *1.

The United States Court of Appeals for the

Fourth Circuit thereafter “affirm[ed] for the reasons stated by the
district court.”

Burgess, 67 Fed. Appx. at 821.

In addition to his litigation in the District of South
Carolina and his instant case, Plaintiff also has another pending
case in this Court, Burgess v. Ebay, Inc., No. 1:11CV193 (M.D.N.C.)
(complaint docketed on March 7, 2011, and notarized as signed on
February 14, 2011), and recently had a case dismissed as frivolous
and for failure to state a claim in the District of Massachusetts,
see Burgess v. Ebay, Inc., Civil Action No. 11-10334-RGS, 2011 WL
1344167

(D.

Mass.

Apr.

8,

2011)

(unpublished)

(incorporating

2

(...continued)

sentenced to an aggregate term of 25 years and was committed to the South
Carolina Department of Corrections. In 1997, [Plaintiff] was released into
federal custody to begin serving a sentence for perjury.”); see also United
States v. Burgess, Nos. 93-5571, 93-7268, 21 F.3d 425 (table), 1994 WL 137007,
at *1 & n.1 (4th Cir. Apr. 18, 1994) (unpublished) (stating that Plaintiff “pled
guilty to one count of knowingly making a false material declaration in an
application to proceed in forma pauperis in violation of 18 U.S.C. § 1623 . . .
[and received a sentence of] sixteen months incarceration to run consecutively
to the state sentence which he [was then] serving . . . [and] three years of
supervised release” and identifying state sentence in question as follows:
“[Plaintiff] was convicted in a South Carolina state court on August 20, 1985,
of conspiring to commit criminal sexual conduct on minors, committing or
attempting lewd acts upon a child under 14, and committing sexual battery of a
child under 16. The court sentenced [him] to 25 years imprisonment.”).

-6-

reasoning from Burgess v. Ebay, Inc., Civil Action No. 11-10334RGS, 2011 WL 841269 (D. Mass. Mar. 8, 2011) (unpublished)).3
The instant case began when Plaintiff paid a $350.00 filing
fee (see Docket Entry dated May 25, 2011 (documenting receipt of
payment on April 20, 2011)) and submitted a 14-page Complaint
(docketed on April 21, 2011 (see Docket Entry 1 at 1) and notarized
as signed on April 12, 2011 (see id. at 14)) which purported to
name

43

contract,

Defendants

in

negligence,

connection
violation

misrepresentation” (id. at 1-3).
(in

conclusory

fashion)

the

with

of

claims

civil

of

rights,

“breach

of

fraud

and

After five paragraphs addressing
alleged

basis

for

the

Court’s

jurisdiction and venue, as well as the citizenship and/or residence
of the putative parties (id. at 2-3), the Complaint sets forth 29
paragraphs of allegations (under the heading “Statement of the
Facts”) asserting (in conclusory fashion) that Defendants harmed
Plaintiff in various ways (see id. at 3-12).
The Complaint identifies some of the putative Defendants as
government officers or employees.

(Id.

at 5 (alleging that

Defendant Asa McNeely “is the jail administrator at McDowell
County”), 7 (referring to Defendants Steve Shortell and Don W.
Farley as employees of “the Rockingham, VA., jail”), and 10

3

Said dismissal has become final because the docket for said case reflects
that, following the court’s denial of Plaintiff’s motion for reconsideration on
May 5, 2011, Plaintiff failed to file a notice of appeal within 30 days as
required by Federal Rule of Appellate Procedure 4(a)(1)(A). See Docket, Burgess,
Civil Action No. 11-10334-RGS (Docket Entries dated May 5, 2011, to present).

-7-

(describing Defendant A. Thompson as “a police officer”).)

This

Court has an obligation to “review, before docketing, if feasible
or, in any event, as soon as practicable after docketing, a
complaint in a civil action in which a prisoner seeks redress from
a governmental entity or officer or employee of a governmental
entity.”

28 U.S.C. § 1915A(a) (emphasis added).

As previously

noted, see supra, pp. 4-5, 7, at the time he filed the Complaint,
Plaintiff was incarcerated as a result of a sentence imposed for a
federal criminal conviction and thus qualified as a “prisoner”
within the meaning of Section 1915A, see 28 U.S.C. § 1915A(c).
The Court therefore reviewed the Complaint under Section
1915A, which provides, in relevant part, that:

“On review, the

court shall identify cognizable claims or dismiss the complaint, or
any portion of the complaint, if the complaint -- (1) is frivolous,
malicious, or fails to state a claim upon which relief may be
granted; or (2) seeks monetary relief from a defendant who is
immune from such relief.”

28 U.S.C. § 1915A(b) (emphasis added).

After completing that review, the Court entered a Screening Order
on May 20, 2011, that states, in relevant part, as follows:
Plaintiff’s claims seem to lack any recognizable
connection. He has raised claims related to, among other
things, jail conditions, legal malpractice, bad business
deals, disputes over insurance payments and car parts,
landlord/tenant or real estate issues, banking problems,
stolen property, and a disagreement over a deposit with
an electric power company.
. . . .

-8-

. . . Plaintiff’s claims lack sufficient factual support
to state a claim for relief or to allow the involved
defendants to formulate a response. Many claims consist
more of legal conclusions than factual statements. Nor
does it appear that many of the claims belong in the same
lawsuit. Overall, Plaintiff has . . . set out exactly
the sort of “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements”
that do not state a claim under [Ashcroft v. Iqbal, 556
U.S. 662, ___, 129 S. Ct. 1937, 1949 (2009)].
Because of his failure to plead a proper claim for
relief,
Plaintiff’s
Complaint
is
subject
to
dismissal. . . . However, it appears that Plaintiff is
near or beyond the statute of limitations as to some or
all of his claims. For that reason, the better course of
action is to stay this case for thirty days and allow
Plaintiff to amend his Complaint. In filing the amended
complaint, Plaintiff must set out specific facts as to
each claim and defendant to establish that a viable claim
for relief exists.
He must make the cause of action
clear as to each claim and defendant and state to the
best of his ability when and where the alleged facts
occurred.
. . . .
Venue in a civil action “wherein jurisdiction is not
founded solely on diversity of citizenship” . . . [must
satisfy] 28 U.S.C. § 1391(b). Here, according to the
Complaint, Defendants reside in multiple states. Nothing
in the Complaint suggests that any of them reside in the
Middle District of North Carolina. In the few instances
where the Complaint mentions locations, it references
other states or places in the Western District of North
Carolina. . . . [N]othing in the Complaint alleges that
any of the acts or omissions occurred in the Middle
District of North Carolina. . . .
. . . Plaintiff should be aware of the potential venue
problems in drafting his amended complaint and should
allege enough facts for the Court to make a venue
determination if one becomes necessary or appropriate.
(Docket Entry 2 at 3-8 (emphasis added).)

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In response to that Screening Order, Plaintiff filed the
instant, 49-page “Amended Complaint-Objection to Order of this
Court” which, in its caption and initial Defendant-identification
paragraphs, purports to name as Defendants 42 of the 43 entities
and individuals named as Defendants in the Complaint (i.e., all
except

Aramark

Corp.),

along

with

12

additional

individuals.

(Compare Docket Entry 1 at 1-3, with Docket Entry 5, Caption and
¶¶ 3-5.)4

The “Amended Complaint-Objection to Order of this Court”

alleges in conclusory fashion that this Court has jurisdiction
“under 28 U.S.C.A. §1331, and §1332,” as well as venue “under 28
U.S.C.A. §1391.”

(Docket Entry 5, ¶ 1.)

It states that Plaintiff

“is a citizen and resident of Virginia” (id., ¶ 1), but its
signature block lists an address in Florida for Plaintiff (id. at
48).

Moreover, Plaintiff subsequently mailed the Clerk a letter

stating “[m]y address is listed below” followed by an address in
North Carolina.

(Docket Entry 6 at 1.)

The “Amended Complaint-Objection to Order of this Court”
identifies 21 of the putative individual Defendants as “citizens
and residents of North Carolina” and alleges, without detail, that
“[s]ome reside in the Middle District of North Carolina.”

4

(Docket

Despite the omission of Aramark Corp. from the Caption and opening
designation of Defendants, the “Amended Complaint-Objection to Order of this
Court” still contains a claim against Aramark Corp. (See Docket Entry 5, ¶¶ 16977.) In addition, the body of the “Amended Complaint-Objection to Order of this
Court” purports to assert claims against John Morgan although neither its Caption
nor its Defendant-identification paragraphs mention him. (Compare id., Caption
and ¶¶ 3-5, with id., ¶¶ 6-16, 38-45.) The “Amended Complaint-Objection to Order
of this Court” thus names a total of either 54 or 56 putative Defendants.

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Entry 5, ¶ 3.)

It describes 12 additional putative individual

Defendants as “citizens of other states [who] have made more than
minimum contacts with the State of North Carolina . . . .”
¶ 5.)

(Id.,

According to the “Amended Complaint-Objection to Order of

this Court,” 21 putative organizational Defendants are “licensed to
do business in North Carolina or are doing business in North
Carolina and . . . have all made minimum contacts with the State of
North Carolina . . . .”

(Id., ¶ 4.)

The bulk of the “Amended Complaint-Objection to Order of this
Court” consists of 33 separate “Counts” or “Claims,” each of which
identifies between one and eight of the 54 (or 56) putative
Defendants.

(See id., ¶¶ 6-230.)

The consecutively-numbered

paragraphs of the “Amended Complaint-Objection to Order of this
Court” concludes with sections labeled “Statement of Claims” and
“Relief Demanded” that purport to summarize the federal statutes
and other laws Defendants violated, as well as the damages and
other relief to which Plaintiff claims entitlement.
¶¶ 231-44.)

(See id.,

The “Amended Complaint-Objection to Order of this

Court” then begins a new paragraph-numbering-sequence under the
heading “Objections to the Order of the Court,” wherein Plaintiff
“objects to the application of 28 U.S.C. §1915A to his [C]omplaint
. . . [and asks] that the application of 28 U.S.C.A. §1915 or 1915A
be declared unconstitutional.” (Docket Entry 5 at 46-47.) It ends

-11-

with a signature page dated June 20, 2011 (id. at 48) and a
“Verification” notarized as signed on June 17, 2011 (id. at 49).5

DISCUSSION
As an initial matter, the Court notes that the portion of the
“Amended Complaint-Objection to Order of this Court” in which
(under the heading “Objections to Order of this Court”) Plaintiff
“objects to the application of 28 U.S.C. §1915A to his [C]omplaint
. . . [and] moves to this Court that the application of 28 U.S.C.A.
§1915 or 1915A be declared unconstitutional” (id. at 46-47), is
untimely under Federal Rule of Civil Procedure 72(a).

Said Rule

states:
When a pretrial matter not dispositive of a party’s claim
or defense is referred to a magistrate judge to hear and
decide, the magistrate judge must promptly conduct the
required proceedings and, when appropriate, issue a
written order stating the decision. A party may serve
and file objections to the order within 14 days after
being served with a copy.
A party may not assign as
error a defect in the order not timely objected to. The
district judge in the case must consider timely
objections and modify or set aside any part of the order
that is clearly erroneous or is contrary to law.
Fed. R. Civ. P. 72(a) (emphasis added).

5

The 30-day amendment period authorized by the Screening Order ended on
Sunday, June 19, 2011, and thus, by operation of Federal Rule of Civil Procedure
6(a)(1)(C) and (d), Plaintiff had until June 23, 2011, to amend his Complaint.
The Clerk docketed Plaintiff’s “Amended Complaint-Objection to Order of this
Court” on that date (see Docket Entry 5 at 1) and, therefore, Plaintiff complied
with the Screening Order’s deadline without considering the prison-mailbox rule,
see generally Houston v. Lack, 487 U.S. 266 (1988).

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The Screening Order did not dispose of any of Plaintiff’s
claims, but instead merely directed him to amend his Complaint
within 30 days.

(See Docket Entry 2 at 9.)

Rule 72(a)’s 14-day

time limit for objections therefore applied to the Screening Order
and commenced on May 20, 2011, when Plaintiff was served by mail
with the Screening Order.

(See Docket Entry dated May 20, 2011.)

That 14-day period ended on June 3, 2011, but, due to the use of
mail to effect service of the Screening Order, Plaintiff received
an

additional

three

days

(until

June

objections, see Fed. R. Civ. P. 6(d).

6,

2011)

to

file

any

Even if the Court set the

filing date of the “Amended Complaint-Objection to Order of this
Court” at the earliest possible point, i.e., June 17, 2011 (the
date, according to the notarization on the “Verification” page, on
which Plaintiff signed said filing (see Docket Entry 5 at 49)),
Plaintiff

did

not

comply

with

Rule

72(a)’s

time

limitation.

Accordingly, under the plain language of Rule 72(a), the Court need
not

consider

the

portion

of

Plaintiff’s

“Amended

Complaint-

Objection to Order of this Court” in which he objects to the
Screening Order.

See, e.g., Federal Election Comm’n v. Christian

Coal., 178 F.R.D. 456, 459 n.3 (E.D. Va. 1998) (“Rule 72(a)
additionally provides that failure to serve timely objections
waives the right to do so in the future.”).
Turning to the remainder of Plaintiff’s “Amended ComplaintObjection to Order of this Court,” the Court observes that, in

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amending his Complaint, Plaintiff added and maintained claims
against government officials and employees.

(See Docket Entry 5,

¶¶ 7 (describing newly-added Defendant Jack Pierce as a “guard” at
the jail in Henderson County, North Carolina), 8 (identifying
newly-added Defendant Ricky Davis as “Sheriff of Henderson County”
and claiming that he adopted policies of denying medical treatment,
“being unduly harsh and cruel to inmates[,] allowing daily beatings
of inmates by the ‘Beat Squad’, and disallowing any books or
magazines or legal materials into the jail”), 16 (listing claims
against

Defendant

Davis,

Defendant

Pierce,

and

newly-added

Defendant Pat Redden (who allegedly bore liability because “[h]er
false imprisonment of the Plaintiff is the direct cause of th[e]
treatment

[Plaintiff

experienced

at

the

jail

in

Henderson

County]”), including denial of medical care, as well as reading and
legal materials, and subjection to cruel and unusual punishment),
17 (denominating newly-added Defendant Greg McCloud as official
“responsible for the proper performance and running of the North
Carolina Sex Offender Registry”), 18-19 (claiming that Defendant
Redden submitted false information about Plaintiff to keep him on
North Carolina’s Sex Offender Registry thereby depriving Plaintiff
of due process), 21 (labeling Defendant Redden as a “rogue cop”),
22 (alleging that Defendants McCloud and Redden “violat[ed] the
Plaintiff’s Constitutional Rights”), 40 (asserting that Defendant
McNeely “is the person in charge of the McDowell County Jail”), 45

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(contending that Defendant McNeely violated Plaintiff’s rights to
due process of law and freedom from cruel and unusual punishment),
63 (alleging that Defendants Shortell and Farley took custody of
Plaintiff at the jail in Rockingham County, Virginia), 68 (positing
that Defendants Shortell and Farley “violated the rights of the
Plaintiff under 42 U.S.C.A. §1983”), 94 (describing Defendant
Thompson as “a detective with the Brevard, N.C. Police Department”
and Defendant Redden as a “rogue detective with Henderson County,
N.C.”), 99 (stating that Defendants Thompson and Redden denied
Plaintiff “due process”), 208 (identifying newly-added Defendants
K.B. Kernodle and Deputy Tilley as “police officers [who] cause[d]
the [unlawful] arrest and confinement of [Joe L. Brady, who
assigned said claim to Plaintiff]”).
For reasons set forth above, see supra, pp. 7-8, the Court
therefore must review Plaintiff’s “Amended Complaint-Objection to
Order of this Court” under 28 U.S.C. § 1915A.

Having conducted

that review, the Court concludes that this case cannot go forward
for at least six reasons:
1) the “Amended Complaint-Objection to Order of this Court”
joins

claims

against

multiple

defendants

in

contravention

of

Federal Rule of Civil Procedure 20(a)(2), requiring either the
dropping of the vast majority of the putative Defendants (and thus
the “Counts” or “Claims” against those Defendants) or severance
under Federal Rule of Civil Procedure 21;

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2) the allegations as to 12 of the “Counts” and “Claims” in
the “Amended Complaint-Objection to Order of this Court” appear to
establish that this Court lacks venue over said “Counts” and
“Claims,” such that Plaintiff must show cause why, if severed into
separate actions, each new action containing each such “Count” or
“Claim” should not be transferred to another district under 28
U.S.C. § 1406(a);
3) the allegations as to three of the “Claims” in the “Amended
Complaint-Objection to Order of this Court” appear to establish
that Plaintiff lacks standing to assert said “Claims,” such that
Plaintiff must show cause why, if severed into separate actions,
each

new

action

containing

each

such

“Claim”

should

not

be

dismissed for want of subject matter jurisdiction;
4) 17 of the “Claims” in the “Amended Complaint-Objection to
Order of this Court” appear to assert only state law causes of
action and to allege insufficient facts to support the Court’s
exercise of diversity jurisdiction, such that Plaintiff must show
cause why, if severed into separate actions, each new action
containing each such “Claim” should not be dismissed for want of
subject matter jurisdiction;
5) 19 of the “Claims” in the “Amended Complaint-Objection to
Order of this Court” lack sufficient factual allegations as to the
place(s) of occurrence of the events alleged; and

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6) 24 of the “Counts” and “Claims” in the “Amended ComplaintObjection

to

Order

of

this

Court”

lack

sufficient

factual

allegations as to the time(s) of occurrence of the events alleged.
Improper Joinder
As set out in the Background section (see supra, pp. 9-11 &
n.4), the “Amended Complaint-Objection to Order of this Court”
purports

to

assert

33

separate

“Counts”

or

“Claims”

against

entirely disparate groupings of between one and eight of the total
number of 54 or 56 putative Defendants. “A party asserting a claim
. . . may join, as independent or alternative claims, as many
claims as it has against an opposing party.”

Fed. R. Civ. P. 18(a)

(emphasis added). “Thus multiple claims against a single party are
fine . . . .”

George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

However, where, as here, a plaintiff seeks to join not
multiple claims against a single defendant, but multiple claims
against multiple defendants, another provision of the Federal Rules
of Civil Procedure comes into play, i.e., the limitation that
“[p]ersons . . . 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)(2) (emphasis added).

-17-

In other words, “[u]nrelated claims against different defendants
belong in different suits . . . .”

George, 507 F.3d at 607.6

The “Counts” and “Claims” in Plaintiff’s “Amended ComplaintObjection

to

Order

of

this

Court”

run

too

wide

a

temporal,

geographic, and subject matter gamut to permit joinder under Rule
20(a)(2), as shown by this summary of said “Counts” and “Claims”:
1) denial of medical care and imposition of other forms of
cruel and unusual punishment in the jail in Henderson County, North
Carolina, in June 2008 (Docket Entry 5, ¶¶ 6-16 (“Count One”));
2)

unconstitutional

information

in

North

submission

Carolina’s

and

Sex

inclusion

Offender

of

false

Registry

at

unidentified places from April 2008 to August 2010 (id., ¶¶ 17-22
(“Count Two”));
3) breach of contract, as well as denial of due process and
equal protection, arising from the handling of property in a
storage unit in Hendersonville, North Carolina, at unspecified
times (id., ¶¶ 23-37 (“Count Three”));

6

Many district courts outside the Seventh Circuit, including a number in
the Fourth Circuit, expressly have followed George on this and related points.
See, e.g., Woods v. County of Wilson, No. 5:10CT3118BO, 2011 4460619, at *4
(E.D.N.C. Sept. 26, 2011) (unpublished); Chandler v. James, 783 F. Supp. 2d 33,
39 (D.D.C. 2011); Proctor v. Applegate, 661 F. Supp. 2d 743, 779 (E.D. Mich.
2009); Showalter v. Johnson, No. 7:08CV276, 2009 WL 1321694, at *4 (W.D. Va. May
12, 2009) (unpublished); Robinson v. Johnson, No. 3:07CV449, 2009 WL 874530, at
*1 (E.D. Va. Mar. 26, 2009) (unpublished); McCoy v. Willis, No. 4:07CV3563-PMDTER, 2008 WL 4221745, at *5 (D.S.C. Sept. 15, 2008) (unpublished).

-18-

4) denial of medical care and imposition of other forms of
cruel and unusual punishment in the jail in McDowell County, North
Carolina, on unidentified times (id., ¶¶ 38-45 (“Claim Four”));
5) violation of North Carolina’s Unfair and Deceptive Trade
Practices

Act

(“UDTPA”),

federal

antitrust

law,

and

the

constitutional right of access to courts by the company that runs
the

telephone

system

in

the

jail

in

Buncombe

County,

North

Carolina, at unspecified times (id., ¶¶ 46-55 (“Claim Five”));
6) deprivation of due process and equal protection due to the
unlawful accessing of North Carolina’s and South Carolina’s Sex
Offender Registries at unidentified times and places (id., ¶¶ 56-62
(“Claim Six”));
7) cruel and unusual punishment in June 2008, in the form of
denial of medicine, food, water, sleep, clothing, and recreation at
the jail in Rockingham County, Virginia, as well as exposure to
second-hand smoke and excessively-long confinement in restraints in
transit to Hendersonville, North Carolina (id., ¶¶ 63-69 (“Claim
Seven”));
8) violation of North Carolina stolen property laws and
federal immigration laws related to the operation of a flea market
at an unidentified place and time (id., ¶¶ 70-78 (“Claim Eight”));
9)

breach

of

contract

in

connection

with

the

sale

of

collectibles at an unspecified place and time (id., ¶¶ 79-82
(“Claim Nine”));

-19-

10) breach of contract as to electrical power service at an
unidentified place and time (id., ¶¶ 83-85 (“Claim Ten”));
11) cruel and unusual punishment in the form of denial of
medical care in the jail at Buncombe County, North Carolina, in
November 2010 (id., ¶¶ 86-93 (“Claim Eleven”));
12) intentional and retaliatory institution of false charges
in violation of due process in Transylvania County, North Carolina,
on unspecified times (id., ¶¶ 94-100 (“Claim Twelve”));
13) common law fraud in connection with state civil litigation
at

unidentified

places

and

times

(id.,

¶¶

101-05

(“Claim

Thirteen”));
14) usury in the provision of bail bonds at unspecified places
and times (id., ¶¶ 106-10 (“Claim Fourteen”));
15) violation of North Carolina’s UDTPA by the manufacturer of
certain products utilized in jails and prisons at unidentified
places and times (id., ¶¶ 111-20 (“Claim Fifteen”));
16) sale of a faulty automobile part and dealing in bad faith
at unspecified places and times (id., ¶¶ 121-25 (“Claim Sixteen”));
17) fraud in the sale by auction of a coat at an unidentified
place and time (id., ¶¶ 126-32 (“Claim Seventeen”));
18) fraud in connection with dealings related to storage units
at

unspecified

places

and

times

Eighteen”));

-20-

(id.,

¶¶

133-36

(“Claim

19) breach of contract regarding monies owed at unidentified
places and times (id., ¶¶ 137-41 (“Claim Nineteen”));
20) negligent misrepresentations by an expert witness at
unspecified places and times (id., ¶¶ 142-47 (“Claim Twenty”));
21) defamation related to articles that appeared in the
Charlotte Observer at unidentified times after Plaintiff’s criminal
trial in November 2009 (id., ¶¶ 148-52 (“Claim Twenty One”));
22) fraud in connection with the renting of an apartment at an
unidentified place and time (id., ¶¶ 153-57 (“Claim Twenty Two”));
23) breach of contract, fraud, and related claims arising from
litigation related to business dealings at unspecified places and
times (id., ¶¶ 158-65 (“Claim Twenty Three”));
24) federal banking and privacy law violations regarding the
removal of money from a checking account at unidentified places and
times (id., ¶¶ 166-68 (“Claim Twenty Four”));
25)

violation

of

North

Carolina’s

UDTPA

related

to

the

provision of canteen services at the jail in McDowell County, North
Carolina, at unspecified times (id., ¶¶ 169-77 (“Claim Twenty
Five”));
26)

breach

of

contract

and

professional

malpractice

in

connection with a state collection action at unidentified places
and times (id., ¶¶ 178-83 (“Claim Twenty Six”));

-21-

27) federal banking and privacy law violations arising from
the

release

of

financial

records

in

the

spring

of

2008

at

unspecified places (id., ¶¶ 184-87 (“Claim Twenty Seven”));
28) violation of state and federal banking laws related to the
writing of certain checks at unidentified places and times (id., ¶¶
188-95 (“Claim Twenty Eight”));
29) fraud in connection with a legal malpractice action
originally filed in a state court in the Middle District of North
Carolina in 2009 regarding a prior lawsuit in Granville County,
North Carolina (id., ¶¶ 196-201 (“Claim Twenty Nine”));
30) unlawful debt collection under federal and state law at
unspecified places and times (id., ¶¶ 202-07 (“Claim Thirty”));
31) unlawful arrest and detention at an unspecified place and
time (id., ¶¶ 208-13 (“Claim Thirty One”));
32) criminal fraud and computer intrusion related to civil
litigation at unidentified places and times (id., ¶¶ 214-25 (“Claim
Thirty Two”)); and
33) fraud and misrepresentation arising from a contract for
internet research at unspecified places and times (id., ¶¶ 226-30
(“Claim Thirty Three”)).
The Screening Order highlighted this misjoinder issue by
noting that Plaintiff’s “claims seem[ed] to lack any recognizable
connection.

He has raised claims related to, among other things,

jail conditions, legal malpractice, bad business deals, disputes

-22-

over insurance payments and car parts, landlord/tenant or real
estate

issues,

banking

problems,

stolen

property,

and

a

disagreement over a deposit with an electric power company.”
(Docket Entry 2 at 3; see also id. at 6 (“Nor does it appear that
many of the claims belong in the same lawsuit.”).)

Because

Plaintiff’s Complaint lacked sufficient factual content to state
any claim, the Court did not need to address misjoinder further at
that time; however, with the factual detail Plaintiff has added in
his “Amended Complaint-Objection to Order of this Court,” the
unsustainability of his effort to join 33 distinct “Counts” and
“Claims” against different (entirely non-overlapping) groupings of
between one and eight of 54 or 56 putative Defendants has become so
clear that the Court must now deal with the misjoinder issue.

See

George, 507 F.3d at 607 (“The district court did not question [the
plaintiff’s] decision to join 24 defendants, and approximately 50
distinct claims, in a single suit.
As

with

the

complaint

in

It should have done so.”).
George,

Plaintiff’s

“Amended

Complaint-Objection to Order of this Court” does “not make any
effort to show that the [54 or 56] defendants he named had
participated in the same transaction or series of transactions or
that a question of fact is common to all defendants.”
(internal quotation marks omitted).

Id.

The Court therefore must not

allow Plaintiff to proceed on the “Amended Complaint-Objection to
Order of this Court.” See id. (“A buckshot complaint that would be

-23-

rejected if filed by a free person - say, a suit complaining that
A defrauded the plaintiff, B defamed him, C punched him, D failed
to pay a debt, and E infringed his copyright, all in different
transactions - should be rejected if filed by a prisoner.”).
Courts must enforce Rule 20’s joinder limitations in cases
such as this one “not only to prevent the sort of morass that
[results when a plaintiff puts dozens of claims against dozens of
defendants into one complaint] but also to ensure that prisoners
pay the required filing fees . . . .”

Id.

Plaintiff effectively

has sought to commence 33 lawsuits for the price of one $350.00
filing fee.
v.

Johnson,

This Court, like others before, see, e.g., Showalter
No.

7:08CV276,

at

*4

(W.D.

Va.

May

12,

2009)

(unpublished), declines to permit such fee-avoidance.
Moreover, by improperly joining unrelated claims against
multiple defendants, Plaintiff perhaps “was trying not only to save
money but also to dodge th[e] [Prison Litigation Reform Act
(“PLRA”)].”

George, 507 F.3d at 607.

“[T]he ‘three strikes’

provision of the . . . [PLRA] generally prohibits a prisoner from
proceeding in forma pauperis (‘IFP’) if he has previously had three
or more actions dismissed as frivolous, malicious, or for failing
to state a claim.”

Tolbert v. Stevenson, 635 F.3d 646, 647 (4th

Cir. 2011) (citing 28 U.S.C. § 1915(g)). By attempting to lump his
33 “Counts” or “Claims” together, Plaintiff may have “hoped that if
even 1 of his [33] claims were deemed non-frivolous [or sufficient

-24-

to state a claim], he would receive no ‘strikes’ at all, as opposed
to the [32] that would result from making [32] frivolous [or
legally insufficient] claims in a batch of [33] suits.”

George,

507 F.3d at 607. Indeed, Plaintiff has particular cause to attempt
to avoid a decision that would constitute a “strike” under the PLRA
because, as documented in the Background section (see supra, pp. 56 & nn.2, 3), he now has two such “strikes” (i.e., the dismissals
in Burgess, 2003 WL 22937930, and Burgess, 2011 WL 1344167) and
thus a third “strike” would subject him to the PLRA’s IFP ban.

The

Court (again, in line with the actions of other courts, see, e.g.,
Showalter, 2009 WL 1321694, at *4) will not allow Plaintiff to
insulate himself from the PLRA through misjoinder.
Having determined that the case cannot move forward via the
“Amended Complaint-Objection to Order of this Court,” the Court
must select the proper curative step.

In this regard, the Federal

Rules of Civil Procedure provide that “[m]isjoinder of parties is
not a ground for dismissing an action.

On motion or on its own,

the court may at any time, on just terms, add or drop a party.
court may also sever any claim against a party.”

The

Fed. R. Civ. P.

21. “Where, as here, statute of limitations concerns arise, courts
should sever rather than simply dismiss the misjoined claims [by
dropping defendants].” Robinson v. Johnson, No. 3:07CV449, 2009 WL
874530, at *2 (E.D. Va. Mar. 26, 2009) (unpublished).

-25-

To accomplish the required severance, “Plaintiff must file new
complaints for his severed claims.

Any forthcoming new complaints

must comport with Rules 8 and 20 of the Federal Rules of Civil
Procedure . . . [and] must stand or fall of their own accord.”

Id.

To the right of the caption of each such new complaint, Plaintiff
must

place

the

following

words:

“NEW

COMPLAINT

FOR

SEVERED

COUNT/CLAIM ________ IN 1:11CV316,” with the corresponding number
in the blank.

See id.

Because of the volume of severed claims

involved, the Court will give Plaintiff until December 30, 2011, to
file any new, successor complaints.

“The failure to submit a

proper new complaint for any [‘Count’ or ‘Claim’ in the “Amended
Complaint-Objection to Order of this Court” by December 30, 2011]
will result in the dismissal of that [‘Count’ or ‘Claim’].”

Id.

“Plaintiff will be responsible for the full filing fee for
each new complaint he submits.”

Id.; accord Showalter, 2009 WL

1321694, at *6 (“Each new lawsuit will obligate [the plaintiff] to
pay the $350.00 district court filing fee pursuant to 28 U.S.C.
§ 1915(g).”).

If Plaintiff takes the position that he lacks

sufficient funds to pay the full $350.00 filing fee applicable to
each new complaint for each severed “Count” or “Claim” in “Amended
Complaint-Objection to Order of this Court” at the time of filing,
he must file a proper application for IFP status with each new
complaint as to which he does not pay the full filing fee.
Court

will

conduct

appropriate

-26-

screening

under

28

The

U.S.C.

§ 1915(e)(2) as to any such new, successor complaint for which
Plaintiff seeks IFP status and/or under 28 U.S.C. § 1915A(b) as to
any such new, successor complaint in which Plaintiff seeks redress
from a governmental official or employee.
Improper Venue
As detailed in the Background section, supra, p. 9, the
Screening Order advised Plaintiff of the venue requirements and
highlighted both the apparent lack of venue reflected by certain
allegations

in

the

Complaint

and

the

absence

of

allegations

necessary for a complete assessment of venue questions.

Moreover,

it directed Plaintiff to “be aware of the potential venue problems
in drafting his amended complaint and [to] allege enough facts for
the Court to make a venue determination if one becomes necessary or
appropriate.”

(Docket Entry 2 at 8.)

A review of the “Amended

Complaint-Objection to Order of this Court” reveals that Plaintiff
did not heed this instruction.

To the contrary, as shown in the

earlier summary of the “Amended Complaint-Objection to Order of
this Court,” supra, pp. 18-22, as to virtually all of the “Counts”
and “Claims,” venue either appears lacking (in that, based on the
allegations, no Defendant therein appears to reside in the Middle
District of North Carolina, a substantial part of the events
described therein failed to occur in the Middle District of North
Carolina, and another district exists where venue would lie, see 28

-27-

U.S.C. § 1391(a) and (b)) or Plaintiff has pled insufficient facts
to permit any determination as to the propriety of venue.
If

(consistent

with

the

discussion

in

the

preceding

subsection, supra, pp. 25-26) Plaintiff files new complaints as to
Counts One, Two, and Three and/or Claims Four, Five, Seven, Eleven,
Twelve, Thirteen, Twenty, Twenty One, and Twenty Five of the
“Amended Complaint-Objection to Order of this Court,” the Court
will have to consider transfer under 28 U.S.C. § 1406(a), in light
of the lack of venue apparent on the face of Plaintiff’s prior
allegations as to each such “Count” or “Claim.” See LaVay Corp. v.
Dominion Fed. Sav. & Loan Ass’n, 830 F.2d 522, 526 (4th Cir. 1987)
(“[If] venue [i]s improper . . ., transfer of [Plaintiff’s] action
[i]s required under 28 U.S.C. § 1406(a).”).

“Although a motion by

one of the parties is ordinarily required for transfer, the
district court may consider the possibility of transfer sua sponte
. . . [but generally must afford] an opportunity to be heard before
a decision is rendered.”

Feller v. Brock, 802 F.2d 722, 729 n.7

(4th Cir. 1986); accord Caldwell v. Palmetto State Sav. Bank of
S.C., 811 F.2d 916, 919 (5th Cir. 1987) (“Under the transfer
statute, a district court may transfer a case upon a motion or sua
sponte.”).

Accordingly, the Court will direct Plaintiff to file

contemporaneously with any such new complaint a memorandum of up to
five pages showing cause why the Court should not transfer that
complaint to another district under Section 1406(a).

-28-

In addition, for reasons stated in a subsection to follow, see
infra, pp. 31-32, the Court will order Plaintiff to include, in any
new complaints as to other “Counts” and “Claims” in the

“Amended

Complaint-Objection to Order of this Court,” additional allegations
regarding the place(s) where the events at issue occurred.

After

reviewing those new complaints, the Court may require Plaintiff to
show cause as to why it should not transfer those new complaints to
another district under Section 1406(a), as well.
Lack of Standing
“It is well settled that under Article III of the United
States Constitution a plaintiff must establish that a case or
controversy exists between himself and the defendant and cannot
rest his claim to relief on the legal rights or interests of third
parties.”

Smith

v.

Frye,

488

F.3d

263,

272

(4th

Cir.

2007)

(describing “dismissal for lack of standing” as dismissal “for lack
of jurisdiction”) (internal quotation marks omitted).

To satisfy

the Constitution’s “standing limitation,” a plaintiff must allege
“such a personal stake in the outcome of the controversy as to
warrant his invocation of federal court jurisdiction and to justify
exercise of the court’s remedial powers on his behalf.” White Tail
Park, Inc. v. Stroube, 413 F.3d 451, 458 (4th Cir. 2005) (internal
brackets and quotation marks omitted)).
As to “Claim Twenty Nine” (Docket Entry 5, ¶¶ 196-201), “Claim
Thirty” (id., ¶¶ 202-07), and “Claim Thirty One” (id., ¶¶ 208-13)

-29-

of the “Amended Complaint-Objection to Order of this Court,”
Plaintiff purports to proceed based “on assignment from Joe L.
Brady.”

As reflected in the prior summary, see supra, pp. 21-22,

Claims Twenty Nine, Thirty, and Thirty One set forth allegations of
torts against persons under federal and/or North Carolina law.
Both

federal

and

North

Carolina

law

generally

prohibit

the

assignment of such tort claims. See Caldwell v. Ogden Sea Transp.,
Inc., 618 F.2d 1037, 1048 (4th Cir. 1980) (acknowledging “general
rule of the non-assignability of personal injury claims” and
describing its “main purposes . . . [as] prevent[ing] unscrupulous
strangers

to

an

occurrence

circumstances

of

an

from

injured

preying

person,

and

on

the

depraved

[]

prohibit[ing]

champerty”); see also id. at 1052 (Widener, J., concurring and
dissenting) (quoting Comegys v. Vasse, 26 U.S. (1 Pet.) 193, 213
(1828), for proposition “‘that mere personal torts, which die with
the party, and which do not survive to his personal representative,
are not capable of passing by assignment,’” and observing that
“research ha[d] uncovered no case modifying this general rule under
federal law”);

Atlantic Coast Mech., Inc. v. Arcadis, Geraghty &

Miller of N.C., Inc., 175 N.C. App. 339, 343, 623 S.E.2d 334, 338
(2006) (“It is well-established in this state that personal tort
claims are not assignable because such assignments would be void
against public policy because they promote champerty.”) (citing,

-30-

inter alia, Charlotte–Mecklenburg Hosp. Auth. v. First of Ga. Ins.
Co., 340 N.C. 88, 91, 455 S.E.2d 655, 657 (1995)).
The Court thus will order that, if (consistent with the
severance requirement discussed in a preceding subsection, supra,
pp. 25-26) Plaintiff files new complaints as to Claims Twenty Nine,
Thirty, and Thirty One, he also file contemporaneously with such
new complaints a memorandum of up to five pages showing cause why
each such new complaint should not be dismissed for want of subject
matter jurisdiction due to Plaintiff’s lack of standing.
Lack of Diversity Jurisdiction
Once Plaintiff files any new complaints to accomplish the
required severance, see supra, pp. 25-26, each such new complaint
must stand on its own, including as to the existence of subject
matter jurisdiction. See generally Robinson, 2009 WL 874530, at *2
(“Any

forthcoming

new

complaints

[carrying

out

a

required

severance] . . . must stand or fall of their own accord.”).

“Claim

Nine” (Docket Entry 5, ¶¶ 79-82), “Claim Ten” (id., ¶¶ 83-85),
“Claim Thirteen” (id., ¶¶ 101-05), “Claim Fourteen” (id., ¶¶ 10610), “Claim Fifteen” (id., ¶¶ 111-20), “Claim Sixteen” (id.,
¶¶ 121-25), “Claim Seventeen” (id., ¶¶ 126-32), “Claim Eighteen”
(id., ¶¶ 133-36), “Claim Nineteen” (id., ¶¶ 137-41), “Claim Twenty”
(id., ¶¶ 142-47), “Claim Twenty One” (id., ¶¶ 148-52), “Claim
Twenty Two” (id., ¶¶ 153-57), “Claim Twenty Three” (id., ¶¶ 15865), “Claim Twenty Five” (id., ¶¶ 169-77), “Claim Twenty Six” (id.,

-31-

¶¶ 178-83), “Claim Twenty Nine” (id., ¶¶ 196-201), and “Claim
Thirty Three” (id., ¶¶ 226-30) of the “Amended Complaint-Objection
to Order of this Court” assert only state law causes of action and
fail to allege sufficient facts to support the Court’s exercise of
diversity jurisdiction under 28 U.S.C. § 1332(a).
For any new complaint as to said “Claims,” the Court therefore
will order Plaintiff to contemporaneously file a memorandum of up
to five pages showing cause why the Court should not dismiss any
such new complaint(s) for want of subject matter jurisdiction.
Lack of Allegations as to Place
“An allegation of . . . place is material when testing the
sufficiency of a pleading.”

Fed. R. Civ. P. 9(f).

As documented

in the prior summary of the “Counts” and “Claims” in the “Amended
Complaint-Objection to Order of this Court,” see supra, pp. 18-22,
the allegations in Claims Six, Eight, Nine, Ten, Fourteen, Fifteen,
Sixteen, Seventeen, Eighteen, Nineteen, Twenty Two, Twenty Three,
Twenty Four, Twenty Five, Twenty Six, Twenty Seven, Twenty Eight,
Thirty Two, and Thirty Three fail to provide sufficient information
as to the place(s) where the events at issue occurred.

Because of

the materiality of allegations of “place” to the evaluation of the
sufficiency of a complaint, the Court will order Plaintiff to
allege where events relevant to the above-referenced claims took
place in any new complaints he files as part of the severance
required in this case, see supra, pp. 25-26.

-32-

Lack of Allegations as to Time
“An allegation of time . . . is material when testing the
sufficiency of a pleading.”

Fed. R. Civ. P. 9(f).

As documented

in the prior summary of the “Counts” and “Claims” in the “Amended
Complaint-Objection to Order of this Court,” see supra, pp. 18-22,
the allegations in Count Three and Claims Four, Five, Six, Eight,
Nine, Ten, Twelve, Thirteen, Fourteen, Fifteen, Sixteen, Seventeen,
Eighteen, Nineteen, Twenty, Twenty One, Twenty Two, Twenty Three,
Twenty Four, Twenty Six, Twenty Eight, Thirty Two, and Thirty Three
fail to provide sufficient information as to the time(s) when the
events

at

issue

occurred.

Because

of

the

materiality

of

allegations of “time” to the evaluation of the sufficiency of a
complaint, the Court will order Plaintiff to allege when events
relevant to the above-referenced claims took place in any new
complaints he files as part of the severance required in this case,
see supra, pp. 25-26.
CONCLUSION
Plaintiff has misjoined claims against multiple defendants in
contravention

of

Federal

Rule

of

Civil

Procedure

20(a)(2),

requiring severance pursuant to Federal Rule of Civil Procedure 21.
Because certain of Plaintiff’s claims contain allegations showing
lack of venue, standing, and/or diversity jurisdiction, he must
show cause why the Court should not transfer or dismiss any postseverance, successor complaints Plaintiff files as to such claims.

-33-

In filing new complaints to carry out the required severance,
Plaintiff also must include sufficient allegations as to the
material

matters

of

place

and

time.

Finally,

Plaintiff’s

objections to the Screening Order were untimely.
IT IS THEREFORE ORDERED as follows:
1) on or before December 30, 2011, for each of the 33 “Counts”
or “Claims” in the “Amended Complaint-Objection to Order of this
Court” (see Docket Entry 5, ¶¶ 6-235) that Plaintiff wishes to
pursue, Plaintiff shall submit:

A) a separate, independent, and

legally sufficient new complaint that states to the right of the
caption,

“NEW

COMPLAINT

FOR

SEVERED

COUNT/CLAIM

________

IN

1:11CV316,” with the corresponding number in the blank; and B)
either a $350.00 filing fee or a proper application to proceed as
a pauper;
2) if Plaintiff files a new complaint as to “Count One” (id.,
¶¶ 6-16), “Count Two” (id., ¶¶ 17-22), “Count Three” (id., ¶¶ 2337), “Claim Four” (id., ¶¶ 38-45), “Claim Five” (id., ¶¶ 46-55),
“Claim Seven” (id., ¶¶ 63-69), “Claim Eleven” (id., ¶¶ 86-93),
“Claim Twelve” (id., ¶¶ 94-100), “Claim Thirteen” (id., ¶¶ 101-05),
“Claim Twenty” (id., ¶¶ 142-47), “Claim Twenty One” (id., ¶¶ 14852), or “Claim Twenty Five” (id., ¶¶ 169-77) of the “Amended
Complaint-Objection

to

Order

of

this

Court,”

he

shall

contemporaneously file a separate memorandum up to five pages in
length

with

each

such

complaint

-34-

showing

cause

in

each

such

memorandum why each such new complaint should not be transferred to
another district via 28 U.S.C. § 1406(a);
3) if Plaintiff files a new complaint as to “Claim Twenty
Nine” (Docket Entry 5, ¶¶ 196-201), “Claim Thirty” (id., ¶¶ 20207), or “Claim Thirty One” (id., ¶¶ 208-13) of the “Amended
Complaint-Objection

to

Order

of

this

Court,”

he

shall

contemporaneously file a separate memorandum up to five pages in
length

with

each

such

complaint

showing

cause

in

each

such

memorandum why each such new complaint should not be dismissed for
want of subject matter jurisdiction due to Plaintiff’s lack of
standing;
4) if Plaintiff files a new complaint as to “Claim Nine” (id.,
¶¶ 79-82), “Claim Ten” (id., ¶¶ 83-85), “Claim Thirteen” (id.,
¶¶ 101-05), “Claim Fourteen” (id., ¶¶ 106-10), “Claim Fifteen”
(id.,

¶¶

111-20),

“Claim

Sixteen”

(id.,

¶¶

121-25),

“Claim

Seventeen” (id., ¶¶ 126-32), “Claim Eighteen” (id., ¶¶ 133-36),
“Claim Nineteen” (id., ¶¶ 137-41), “Claim Twenty” (id., ¶¶ 142-47),
“Claim Twenty One” (id., ¶¶ 148-52), “Claim Twenty Two” (id.,
¶¶ 153-57), “Claim Twenty Three” (id., ¶¶ 158-65), “Claim Twenty
Five” (id., ¶¶ 169-77), “Claim Twenty Six” (id., ¶¶ 178-83), “Claim
Twenty Nine” (id., ¶¶ 196-201), or “Claim Thirty Three” (id.,
¶¶ 226-30) of the “Amended Complaint-Objection to Order of this
Court,” he shall contemporaneously file a separate memorandum up to
five pages in length with each such complaint showing cause in each

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such memorandum why each such new complaint should not be dismissed
for want of subject matter jurisdiction due to the fact that each
such “Claim” asserts only state law causes of action and does not
allege

sufficient

facts

to

support

the

Court’s

exercise

of

diversity jurisdiction under 28 U.S.C. § 1332(a);
5) if Plaintiff files a new complaint as to “Claim Six”
(Docket Entry 5, ¶¶ 56-62), “Claim Eight” (id., ¶¶ 70-78), “Claim
Nine”

(id.,

¶¶

79-82),

“Claim

Ten”

(id.,

¶¶

83-85),

“Claim

Fourteen” (id., ¶¶ 106-10), “Claim Fifteen” (id., ¶¶ 111-20),
“Claim Sixteen” (id., ¶¶ 121-25), “Claim Seventeen” (id., ¶¶ 12632), “Claim Eighteen” (id., ¶¶ 133-36), “Claim Nineteen” (id.,
¶¶ 137-41), “Claim Twenty Two” (id., ¶¶ 153-57), “Claim Twenty
Three” (id., ¶¶ 158-65), “Claim Twenty Four” (id., ¶¶ 166-68),
“Claim Twenty Five” (id., ¶¶ 169-77), “Claim Twenty Six” (id.,
¶¶ 178-83), “Claim Twenty Seven” (id., ¶¶ 184-87), “Claim Twenty
Eight” (id., ¶¶ 188-95), “Claim Thirty Two” (id., ¶¶ 214-25), or
“Claim Thirty Three” (id., ¶¶ 226-30) of the “Amended ComplaintObjection to Order of this Court,” Plaintiff shall include factual
allegations as to the place(s) of occurrence of the events alleged
as to each such “Claim”;
6) if Plaintiff files a new complaint as to “Count Three”
(id., ¶¶ 23-37), “Claim Four” (id., ¶¶ 38-45), “Claim Five” (id.,
¶¶ 46-55), “Claim Six” (id., ¶¶ 56-62), “Claim Eight” (id., ¶¶ 7078), “Claim Nine” (id., ¶¶ 79-82), “Claim Ten” (id., ¶¶ 83-85),

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“Claim Twelve” (id., ¶¶ 94-100), “Claim Thirteen” (id., ¶¶ 101-05),
“Claim Fourteen” (id., ¶¶ 106-10), “Claim Fifteen” (id., ¶¶ 11120), “Claim Sixteen” (id., ¶¶ 121-25), “Claim Seventeen” (id.,
¶¶ 126-32), “Claim Eighteen” (id., ¶¶ 133-36), “Claim Nineteen”
(id., ¶¶ 137-41), “Claim Twenty” (id., ¶¶ 142-47), “Claim Twenty
One” (id., ¶¶ 148-52), “Claim Twenty Two” (id., ¶¶ 153-57), “Claim
Twenty Three” (id., ¶¶ 158-65), “Claim Twenty Four” (id., ¶¶ 16668), “Claim Twenty Six” (id., ¶¶ 178-83), “Claim Twenty Eight”
(id., ¶¶ 188-95), “Claim Thirty Two” (id., ¶¶ 214-25), or “Claim
Thirty Three” (id., ¶¶ 226-30) of the “Amended Complaint-Objection
to

Order

of

this

Court,”

Plaintiff

shall

include

factual

allegations as to the time(s) of occurrence of events alleged as to
each such “Count” or “Claim”; and
7) the portion of the “Amended Complaint-Objection to Order of
this Court” that falls under the heading “Objections to the Order
of this Court” (id. at 46-47) will be disregarded as an untimely
objection to a non-dispositive, pretrial ruling by a Magistrate
Judge under Federal Rule of Civil Procedure 72(a).
A FAILURE BY PLAINTIFF TO COMPLY WITH THIS ORDER IN A TIMELY
MANNER WILL RESULT IN DISMISSAL WITHOUT PREJUDICE OF THIS ACTION
WITHOUT FURTHER NOTICE TO PLAINTIFF.

A FAILURE BY PLAINTIFF TO

SUBMIT A PROPER NEW COMPLAINT FOR ANY “COUNT” OR “CLAIM” IN THE
“AMENDED COMPLAINT-OBJECTION TO ORDER OF THIS COURT” BY DECEMBER

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30, 2011, WILL RESULT IN THE DISMISSAL WITHOUT PREJUDICE OF THAT
“COUNT” OR “CLAIM” WITHOUT FURTHER NOTICE TO PLAINTIFF.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November 2, 2011

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