Burke v. North Dakota Department of Corrections and Rehabilitation et al

Filing 22

ORDER ADOPTING 20 REPORT AND RECOMMENDATIONS by Judge Daniel L. Hovland denying Burke's 8 Emergency Motion; denying Burke's 12 Motion to Amend/Correct; and denying Burke's 13 Motion for TRO. Burke is directed to file an amended complaint that complies with Fed.R.Civ.P. 20 within 30 days. Failure to comply with this order may result in the dismissal of the entire action without prejudice. (QF) Distributed on 3/20/2013. (rs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION

Dale Joseph Burke,
Plaintiff,
vs.
North Dakota Department of Corrections
and Rehabilitation, et al.
Defendants,

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ORDER ADOPTING
REPORT AND RECOMMENDATION

Case No. 1:12-cv-131

Before the Court is Magistrate Judge Charles S. Miller, Jr.’s “Report and
Recommendation” which was filed on February 28, 2013. See Docket No. 20. Judge Miller
conducted an initial screening of the Plaintiff, Dale Burke’s, complaint pursuant to 28 U.S.C. §
1915A. Judge Miller also reviewed several pending non-dispositive motions filed by Burke.
Judge Miller found the complaint lacked sufficient specificity, and includes a variety of
unrelated matters which misjoins the defendants in violation of Rule 20 of the Federal Rules of
Civil Procedure.

See Docket No. 20, pp. 4-8.

Judge Miller makes the following

recommendations:
1.

Burke be directed to file an amended complaint within thirty days that
includes only those persons as defendants, along with associated claims,
that complies with the limitations upon joinder of defendants set forth [in]
Fed. R. Civ. P. 20 and that defendants previously named, but not named in
the amended complaint, be dismissed without prejudice.

2.

The motion to amend at Doc. No. 12, the emergency motion at Doc. No. 8,
and the motion for temporary restraining order at Doc. No. 13 all be
denied.

3.

The motion for Marshal service of process at Doc. No. 19 be held in
abeyance.

4.

The court advise Burke that the failure to file an amended complaint
complying with Rule 20’s requirements may result in a dismissal of his
entire action without prejudice for failure to comply with the court’s order.

See Docket No. 20, p. 19. Burke filed an objection to the Report and Recommendation on
March 11, 2013. See Docket No. 21.
The Court has carefully reviewed the entire record and the relevant law, and finds the
Report and Recommendation to be persuasive.

The Court ADOPTS the Report and

Recommendation (Docket No. 20) in its entirety, and ORDERS as follows:
1.

Burke is DIRECTED to file an amended complaint within thirty (30)
days that only includes those persons and claims that comply with Rule 20
of the Federal Rules of Civil Procedure. Any defendant not named in the
amended complaint shall be dismissed without prejudice.

2.

The motion to amend (Docket No. 12), the emergency motion (Docket No.
8), and the motion for temporary restraining order (Doc. No. 13) are
DENIED.

3.

The motion for Marshal service of process (Docket No. 19) is HELD IN
ABEYANCE.

4.

The Court advises Burke that failure to file an amended complaint in
compliance with Fed. R. Civ. P. 20 may result in a dismissal of the entire
action without prejudice for failure to comply with the Court’s order.

IT IS SO ORDERED.
Dated this 20th day of March, 2013.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court

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