Ferrell v. Williams County Sheriff's Department et al

Filing 32

ORDER by Magistrate Judge Charles S. Miller, Jr. denying 30 Motion for Discovery; denying 31 Motion to Amend/Correct. (KT) Distributed on 12/30/2014 (jt).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
NORTHWESTERN DIVISION
Justin Lamar Ferrell,
Plaintiff,
vs.
Williams County Sheriffs Office,
Williston Police Department,
Ryan Enggerman Williston PD,
Sam Aide Williston PD,
Defendants.

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ORDER

Case No. 4:14-cv-131

The plaintiff, Justin Lamar Ferrell (“Ferrell”), was being held at the Williams County
Correctional Center at the time he initiated the above-captioned action. However, it appears he has
since been moved to the North Dakota State Penitentiary.
On December 23, 2014, Ferrell filed a document in which he requests: (1) production of
documents (surveillance footage taken by security cameras at the Williams County Correctional
Center) from defendants; and (2) leave to further amend his pleadings to assert new claims against
new defendants.
With respect to discovery in cases such as this, the court employs the following protocol.
Once the defendants have made an appearance and filed a responsive pleading, the court will direct
the parties to submit proposed scheduling and discovery plans. Upon receipt and review of these
proposed plans, the court shall issue a scheduling and discovery order. See Fed. R. Civ. P. 16(b)(1).
In the interim, discovery is not generally permitted. Cf. Fed. R. Civ. P. 26(d)(1) (“A party may not
seek discovery from any source before the parties have conferred as required by Rule 26(f), except
in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by
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these rules, by stipulation, or by court order.”).
Here, defendants have yet to file a responsive pleading. Consequently, Ferrell’s request for
production of documents (Docket No. 30) is DENIED without prejudice on the grounds that it is
premature. Ferrell can take solace in the fact that, with the submission of his request, he has given
notice to defendants that he believes the requested material is relevant and needs to be preserved.
The court shall now turn to Ferrell’s request for leave to further amend his pleadings.
Ferrell seeks leave to file a second amended complaint to assert new claims against new
defendants. He asserts that WCCC staffers Joe Schradder and Scott Enget retaliated against him for
filing the above-entitled action against defendants and that other unnamed WCCC staffers opened
his legal mail before forwarding it on to him at the NDSP.
Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s
pleading once as a matter of course at any time before a responsive pleading is served. Otherwise,
a party may amend only by leave of the court or by written consent of the adverse party. Fed. R.
Civ. P. 15(a). In this instance, Ferrell has already filed an amended complaint.1 Consequently, he
may further amend only with leave of the court or by written consent of the adverse party.
The court is not inclined to permit Ferrell to amend his complaint to add new claims against
new defendants arising out of alleged conduct occurred after this action was filed. First, allowing
prisoners to add additional claims against new parties that bear no substantial relationship to the
pending proceeding frustrates the intent of Congress with respect to the enactment of the “three
strikes” provision of the Prison Litigation Reform Act of 1995 (“PLRA”) codified at 28 U.S.C. §

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Ferrell filed an amended complaint with the court on November 12, 2014. See Docket No. 13.

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1915(g).2 Second, allowing joinder of marginally related claims circumvents the PLRA’s filing fee
requirements codified at 28 U.S.C. § 1915(b). See George v. Smith, 507 F.3d 605, 607 (7th Cir.
2007); see also Bryan v. Gallager, No. 1:11-cv-00446, 2012 WL 370316, at *1-2 (E.D. Cal. Feb. 3,
2012).
In George v. Smith, the Seventh Circuit had this to say about allowing prisoners to join
marginally related claims:
The district court did not question George’s decision to join 24 defendants,
and approximately 50 distinct claims, in a single suit. It should have done so. The
controlling principle appears in Fed.R.Civ.P. 18(a): “A party asserting a claim to
relief as an original claim, counterclaim, cross-claim, or third-party claim, may join,
either as independent or as alternate claims, as many claims, legal, equitable, or
maritime, as the party has against an opposing party.” Thus multiple claims against
a single party are fine, but Claim A against Defendant 1 should not be joined with
unrelated Claim B against Defendant 2. Unrelated claims against different
defendants belong in different suits, not only to prevent the sort of morass that this
50-claim, 24-defendant suit produced but also to ensure that prisoners pay the
required filing fees-for the Prison Litigation Reform Act limits to 3 the number of
frivolous suits or appeals that any prisoner may file without prepayment of the
required fees. 28 U.S.C. § 1915(g). George was trying not only to save money but
also to dodge that rule. He hoped that if even 1 of his 50 claims were deemed
non-frivolous, he would receive no “strikes” at all, as opposed to the 49 that would
result from making 49 frivolous claims in a batch of 50 suits. The district judge
likewise assumed that a single non-frivolous claim in a blunderbuss complaint makes
the suit as a whole non-frivolous.
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This means that the second sentence of Rule 20(a)-“All persons ... may be joined in
one action as defendants if there is asserted against them jointly, severally, or in the
alternative, any right to relief in respect of or arising out of the same transaction,
occurrence, or series of transactions or occurrences and if any question of law or fact
common to all defendants will arise in the action”-is as applicable as the first

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In passing the “three strikes” provision, Congress intended to limit the ability of individual prisoners being
able to file repeated meritless actions by imposing a cap on the number of such actions with the consequence that, once
the cap has been reached, the ability of a prisoner to file new actions is greatly circumscribed. Royal v. Kautzky, 375
F.3d 720, 730-731 (8th Cir. 2004). Obviously, allowing prisoners to “load up” law suits with marginally related claims
limits the effectiveness of the “three strikes” provision. See George v. Smith, 507 F.3d at 607.

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sentence. A buckshot complaint that would be 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. George did not make any effort
to show that the 24 defendants he named had participated in the same transaction or
series of transactions or that a question of fact is “common to all defendants.”
507 F.3d at 607.
Ferrell’s assertion that other WCCC staffers retaliated against him for filing this action does
not make that claim related to the underlying claims proceeding against the named defendants.
Since Ferrell is attempting to add additional defendants and claims that may not proceed in this
action, amendment would be futile. Ferrell’s request for leave to further amend his pleadings
(Docket No. 31) is therefore DENIED. If Ferrell believes he has legitimate claims with respect to
the proposed amendments, his recourse is to file a separate action.
IT IS SO ORDERED.
Dated this 30th day of December, 2014.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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