LaKemper v. Solomon et al

Filing 12

ORDER that Plaintiff shall have (30) days in which to amend the complaint in accordance with this order; Clerk to mail new Section 1983 complaint form; denying as moot 2 Motion to Compel; denying as moot 7 Motion to Com pel; the Court notes that after this Court entered its order directing monthly payments to be paid from Plaintiffs prison account, Plaintiff paid the filing fee of $400 in full. Therefore, the Clerk is respectfully instructed to rescind and terminate its order (Doc. No. 11) dated May 16, 2017. Signed by Chief Judge Frank D. Whitney on 5/26/2017. (Pro se litigant served by US Mail.) (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:17-cv-73-FDW
COBEY LAKEMPER,

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Plaintiff,
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vs.
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GEORGE T. SOLOMON, et al.,
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Defendants.
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____________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Complaint, filed
under 42 U.S.C. § 1983, (Doc. No. 1). See 28 U.S.C. §§ 1915(e)(2); 1915A. Also pending are
Plaintiff’s Motion to Compel Defendants to Issue Money Order Deducting Funds to Pay Filing
Fee and Copies, (Doc. No. 2), and Plaintiff’s Motion to Compel Defendants to Allow Use of
Copy Machine, (Doc. No. 7).
On May 16, 2017, the Court entered an order waiving the initial filing fee and directing
monthly payments to be made from Plaintiff’s prison account. (Doc. No. 5). On May 18, 2017,
the Court received a payment for Plaintiff’s full filing fee of $400. (Doc. Entry Dated May 18,
2017).
I.

BACKGROUND

Pro se Plaintiff Cobey LaKemper, a North Carolina state inmate currently incarcerated at
Alexander Correctional Institution in Taylorsville, North Carolina, filed this action on April 25,
2017, pursuant to 42 U.S.C. § 1983. In the Complaint, Plaintiff brings various, unrelated claims
against thirteen Defendants, based on events occurring at Alexander Correctional Institution and

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based on events that occurred while Plaintiff was previously incarcerated at Pasquotank
Correctional Institution in Elizabeth City, North Carolina.
II.

STANDARD OF REVIEW

Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint
to determine whether it is subject to dismissal on the grounds that it is “frivolous or malicious
[or] fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore,
§ 1915A requires an initial review of a “complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity,” and the
court must identify cognizable claims or dismiss the complaint, or any portion of the complaint,
if the complaint is frivolous, malicious, or fails to state a claim upon which relief may be
granted; or seeks monetary relief from a defendant who is immune from such relief. In its
frivolity review, this Court must determine whether the Complaint raises an indisputably
meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or
delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
III.

DISCUSSION

Under Rule 18(a) of the Federal Rules of Civil Procedure, a plaintiff may bring multiple
claims, related or not, in a lawsuit against a single defendant. See FED. R. CIV. P. 18(a).
However, to name other defendants in the same lawsuit, the plaintiff must satisfy Rule 20(a)(2),
which permits joinder of multiple defendants only where the right to relief asserted against them
arises out of the same transaction or occurrence and concerns a common question of law or fact.
See FED. R. CIV. P. 20(a)(2). Here, Plaintiff’s complaint brings multiple, unrelated claims
against numerous defendants. Thus, Plaintiff’s allegations fail to comply with the rules
governing the joinder of multiple claims and defendants in the same lawsuit. See George v.

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Smith, 507 F.3d 605, 607 (7th Cir. 2007) (noting that “[u]nrelated claims against different
defendants belong in different suits,” so as to prevent prisoners from dodging the fee payment or
three-strikes provisions in the Prison Litigation Reform Act). For instance, Plaintiff’s “SRG
Classification/Mail Injuries” claim against various Defendants is wholly unrelated to his “law
library denial” claim. Furthermore, some of Plaintiff’s claims arise out of events that occurred
while he was incarcerated at Pasquotank Correctional Institution, which is in Elizabeth City,
North Carolina. Therefore, as to some of Plaintiff’s claims against some of the named
Defendants, the proper venue appears to be the Eastern District of North Carolina. See 28
U.S.C. § 1391(b)(2). The Court will allow Plaintiff the opportunity to amend the Complaint to
comply with Rules 18 and 20. That is, in an amended Complaint, Plaintiff may choose which
distinct claims he wishes to pursue in this action. As to wholly unrelated claims against different
Defendants, he must bring those claims through separately filed lawsuits. Furthermore, if
Plaintiff chooses to amend his Complaint, Plaintiff’s claims against certain Defendants arising
out of conduct that occurred in the Eastern District of North Carolina will likely be subject to
dismissal for lack of proper venue.
IV.

CONCLUSION

For the reasons stated herein, Plaintiff shall have thirty (30) days in which to amend his
complaint in accordance with this order.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff shall have thirty (30) days in which to amend the complaint in accordance
with this order. If Plaintiff fails to amend the complaint within the time limit set by
the Court, this action will be dismissed without prejudice and without further notice
to Plaintiff. Furthermore, to the extent that an amended complaint purports to bring

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claims against multiple defendants that are wholly unrelated, the amended complaint
will be subject to dismissal without further notice to Plaintiff for the reasons
explained in this order.
2. The Clerk is directed to mail Plaintiff a new Section 1983 complaint form.
3. Plaintiff’s Motion to Compel Defendants to Issue Money Order Deducting Funds to
Pay Filing Fee and Copies, (Doc. No. 2), and Plaintiff’s Motion to Compel
Defendants to Allow Use of Copy Machine, (Doc. No. 7), are both DENIED as moot
at this time.
4. Finally, the Court notes that after this Court entered its order directing monthly
payments to be paid from Plaintiff’s prison account, Plaintiff paid the filing fee of
$400 in full. Therefore, the Clerk is respectfully instructed to rescind and terminate
its order dated May 16, 2017. See (Doc. No. 11).

Signed: May 26, 2017

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