Murdock et al v. State of Tennessee et al

Filing 46

ORDER DENYING CLASS CERTIFICATION; ORDER CORRECTING THE DOCKET; ORDER ON PENDING MOTIONS AND ORDER OF PARTIAL DISMISSAL( 28 31 32 34 35 43 44 ). Signed by Judge J. Daniel Breen on 9/18/12. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

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MARSHALL H. MURDOCK, et al.,
Plaintiffs,
v.
STATE OF TENNESSEE, et al.,
Defendants.

No. 11-1220-JDB-egb

ORDER DENYING CLASS CERTIFICATION
ORDER CORRECTING THE DOCKET
ORDER ON PENDING MOTIONS
AND
ORDER OF PARTIAL DISMISSAL

On

July

5,

2011,

the

Plaintiffs,

Marshall

H.

Murdock,

Tennessee Department of Correction (“TDOC”) prisoner number 363417;
Charles H. Roberts, TDOC prisoner number 428139; Julius Perkins,
TDOC prisoner number 258949; and Rudolph Powers, TDOC prisoner
number 95360, all of whom were at the time inmates at the Northwest
Correctional Complex (“NWCX”) in Tiptonville, Tennessee, filed a
joint pro se complaint pursuant to Title II of the Americans With
Disabilities Act (“ADA”), 42 U.S.C. §§ 12131, et seq., in the
United States District Court for the Middle District of Tennessee,
accompanied by a legal memorandum.
2.)

On

July

18,

2011,

appointment of counsel.

each

(Docket Entries (“D.E.”) 1 &

Plaintiff

filed

(D.E. 12, 14, 16 & 18.)

a

motion

for

After Plaintiffs filed the required documents, United States
District Judge Todd J. Campbell issued an order on July 22, 2011
granting

leave

to

proceed

in

forma

pauperis,

assessing

each

plaintiff one-quarter of the civil filing fee pursuant to the
Prison Litigation Reform Act of 1996 (“PLRA”), 28 U.S.C. §§
1915(a)-(b), and transferring the case to this district, where
venue was proper.

(D.E. 21.)

district on July 22, 2011.

The case was docketed in this

(D.E. 22.)

The Clerk shall record the

Defendants as the State of Tennessee, TDOC Commissioner Derrick R.
Schofield (whose name was misspelled as “Scholfield” in the case
caption), TDOC Assistant Commissioner of Operations Reuben Hodge
(whose first name was misspelled as “Ruben”), former NWCX Warden
David Mills, NWCX Deputy Warden Brenda Jones, NWCX Assistant Warden
for

Operations

Melvin

Tirey,

NWCX

Health

Care

Administrator

Samantha Phillips, and NWCX Physicians Assistant (“PA”) Amanda
Collins.1
The inmates purport to sue on their own behalf and on behalf
of all other similarly situated prisoners in TDOC custody.
1 at 1.)

A party in federal court must proceed either through

licensed counsel or on his or her own behalf.
1654.

(D.E.

See 28 U.S.C. §

A pro se litigant can only represent his own interests and

1

The complaint also purports to sue “JOHN and JANE DOE, Yet Unnamed.”
(D.E. 1 at 1.) Service of process cannot be made on a fictitious party. The
filing of a complaint against “John Doe” defendants does not toll the running of
the statute of limitation against those parties. See Cox v. Treadway, 75 F.3d
230, 240 (6th Cir.), cert. denied, 519 U.S. 821, 117 S. Ct. 78, 136 L. Ed. 2d 37
(1996). Thus, if Plaintiffs seek to sue any other individual or entity, they
must identify the defendant and file a new lawsuit within the applicable statute
of limitations period.

2

can only sign pleadings on his own behalf.

Shepherd v. Wellman, 313

F.3d 963, 970-71 (6th Cir. 2002), reh’g denied (Fed. 24, 2003); Garrison v. Fleet
Fin., Inc., ___ F. App’x ___, 1999 WL 282626, at *1 (6th Cir. Apr. 30, 1999).

Therefore, Plaintiffs, who are pro se litigants, cannot prosecute
this case as a class action.
is DENIED.

Leave to certify a class of prisoners

The Clerk is directed to correct the docket to reflect

that Murdock, Roberts, Perkins, and Powers are the only Plaintiffs.
When this action was commenced, each Plaintiff was housed at
the NWCX.
at

the

That is no longer the case.
Riverbend

Maximum

Security

Murdock is currently housed
Institution

(“RMSI”)

in

Nashville, Tennessee, located in the Middle District of Tennessee,
and Roberts is now at the Morgan County Correctional Complex
(“MCCX”) in Wartburg, Tennessee, located in the Eastern District of
Tennessee.

Perkins and Powers remain at the NWCX.

Because a pro

se litigant cannot represent anyone other than himself, Plaintiffs
cannot file joint pleadings, motions, or other papers unless every
Plaintiff

personally

signs

the

filing.

That

appears

to

be

impractical in this case, where filings have been made on behalf of
all the Plaintiffs but have not been signed by each plaintiff.
(See, e.g., D.E. 23 (signed only by Plaintiff Murdock), D.E. 31
(same), D.E. 32 (same), D.E. 34 (same), D.E. 35 (same).)

Murdock

recognized as much when, in a later pleading, he stated that he had
been unable to communicate with Perkins and Powers.

(D.E. 43 at

1.)2
2

Had the case been filed initially in this district, the Court would
have severed the cases in anticipation of the logistical difficulties that have
(continued...)

3

Plaintiffs have submitted motions for the appointment of
counsel.

(D.E. 12, 14, 16 & 18.)

Pursuant to 28 U.S.C. §

1915(e)(1), “[t]he court may request an attorney to represent any
person unable to afford counsel.”

However, “[t]he appointment of

counsel in a civil proceeding is not a constitutional right.”
Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003).

Appointment

of counsel is “a privilege that is justified only by exceptional
circumstances.”
1993).

Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir.

“In determining whether exceptional circumstances exist,

courts have examined the type of case and the abilities of the
plaintiff to represent himself."
omitted).
complexity

"This
of

the

generally
factual

Id. (internal quotation marks

involves
and

legal

a

determination

issues

of

involved.”

the
Id.

(internal quotation marks omitted).3 Appointment of counsel is not
appropriate when "a pro se litigant’s claims are frivolous or when
the

chances

of

success

are

extremely

slim."

Id.

(internal

2

(...continued)
subsequently arisen. Each Plaintiff would have been required to pay the entire
civil filing fee and to file his own complaint. In this case, however, the case
was initiated in the Middle District, and Judge Campbell effectively ratified
Plaintiffs’ decisions to file a joint complaint by assessing each Plaintiff a pro
rata share of the filing fee. The order assessing the filing fee is now the law
of the case, and the Court will not sever the cases. As will be discussed infra,
because they have chosen to file their actions jointly, the individual Plaintiffs
will not be permitted to amend to add new claims against new parties that do not
arise out of the operative facts of the instant suit.
3

Plaintiffs are not entitled to an evidentiary hearing on the issue.
Sutton v. United States Small Bus. Admin., 92 F. App’x 112, 116 (6th Cir. 2003).

4

citations omitted); see also Cleary v. Mukasey, 307 F. App’x 963,
965 (6th Cir. 2009) (same).4
Plaintiffs have not satisfied their burden of demonstrating
that appointment of counsel would be appropriate in this case. The
substance of Plaintiffs’ claims, involving alleged discrimination
against elderly, disabled inmates and deprivations of appropriate
medical care, are similar to numerous other cases litigated by pro
se prisoners without the assistance of counsel.

That Plaintiffs

have chosen to file their claims jointly, and now find themselves
incarcerated in different facilities, is a logistical and clerical
problem inherent in their decision, not an affirmative reason to
appoint counsel.

Finally, the Court’s Pro Bono Panel generally

does not recruit attorneys to serve as potential class counsel
because of the significant time commitment that is required and
because those cases are more appropriately handled by attorneys
with experience in class action litigation. Therefore, Plaintiffs’
motions for appointment of counsel are DENIED.
Since this action began, the Clerk has docketed numerous
motions provided by various Plaintiffs.

For the sake of clarity,

the Court will address the motions filed by Murdock separately from
those filed by Powers.

Almost every document submitted by Powers

4
These factors are important, because the statute “does not authorize
the federal courts to make coercive appointments of counsel” to represent
indigent civil litigants. Mallard v. United States Dist. Ct. for S. Dist. of
Iowa, 490 U.S. 296, 310, 109 S. Ct. 1814, 1823, 104 L. Ed. 2d 318 (1989).

5

appears to have been docketed in this case in error.5

On December

12, 2011, Powers filed a "Motion for Leave of Federal Court to
Correct Clerical Mistake Final Decision and Order of the Tennessee
Supreme

Court

and

to

Supplement

the

Records

on

Appeal

with

Corrected Order Tenn. R. of Ct. Rule [No.] 36; and Rule [No.]
16(A)(1)(F) or (G) November 9, 2011:"

(D.E. 25.)

That document,

on its face, does not pertain to the instant suit under the ADA
but,

instead,

convictions.6

seeks

relief

from

one

or

more

state-court

The document bears the case number 90-2225-H, as

well as various state-court docket numbers.

It appears that,

because of the age of the case, the Clerk did not realize that 902225-H

was

a

case

number

from

this

district

and,

instead,

mistakenly filed the document in Powers’ only open case.7
The

following

documents

submitted

by

Powers

were

also

erroneously filed in this case, rather than in case number 90-2225H:

"Petitioner’s Supplement Pleading to the Records and Appendix:

5

The sole exception is an "Addendum to Brief under the Americans With
Disabilities Act of 1990, 42 U.S.C.A. §§ 12101 Through 12132 and 12112(B)(5)"
(D.E. 24), which was filed by Powers on August 23, 2011.
6

The Tennessee Supreme Court recently issued a decision on Powers’
challenge to his state convictions under the Post-Conviction DNA Analysis Act.
Powers v. State, 343 S.W.3d 36 (Tenn. 2011). Because Powers prevailed in his
appeal to the Tennessee Supreme Court, which sought DNA testing of the remaining
evidence pertaining to his two convictions for aggravated rape and his conviction
for robbery by use of a deadly weapon, and because it appears that the statecourt proceedings have not concluded, it is unclear why he is filing these
various documents about his state-court convictions at this time.
7

In 1990, Powers filed a petition pursuant to 28 U.S.C. § 2254, Powers
v. Rone, No. 98-2225-H/A (W.D. Tenn.). On July 2, 1991, United States Magistrate
Judge James H. Allen issued a report and recommendation recommending that the
petition be dismissed. On August 2, 1990, United States District Judge Odell
Horton adopted the report and recommendation and dismissed the petition.
Judgment was entered on September 11, 1991.

6

That Petitioner's [sic] Received on December 16, 2011 from His Then
Attorney of the Supreme Court of Tennessee, on September 30, 2011"
(D.E. 26), which was filed on December 22, 2011; motion for
appointment of counsel (D.E. 27), which was filed on December 28,
2011; and a letter docketed on March 2, 2012 (D.E. 29).8

Other

documents submitted by Powers use some variant of the correct case
number for this matter (such as “Case No. 1:11-0220”) but pertain
to his state criminal cases and the documents he previously filed
under docket number 90-2225-H:

"Traverse Pleading" (D.E. 36),

filed on April 25, 2012; petition for writ of mandamus (D.E. 37, 38
& 39), filed on June 7, 2012; an inquiry (D.E. 40), filed on July
20, 2012;9 and an inquiry (D.E. 42), filed on August 8, 2012.

To

the extent Powers seeks leave to amend to file a habeas claim
pertaining to his state-court convictions, leave to amend is
DENIED. Because Powers’ habeas matters are not properly considered
in a civil suit under the ADA, the petition for a writ of mandamus
(D.E. 37) is also DENIED.

The Clerk is DIRECTED to remove D.E. 25,

26, 27, and 29, which were filed in this case in error, and to file
them in case number 90-2225-H.

The Clerk is further DIRECTED to

file copies of D.E. 36, 37, 38, 39, 40, and 42 in case number 902225-H.
Another

document

filed

by

Powers

is

titled

"Supplement

Pleading for Protective Order and Preliminary Injunction to Keep

8
That letter noted that the filing fee for a new habeas petition was
paid on Powers’ behalf on or after December 12, 2011. (D.E. 29 at 1.)
9

1:11-0220.”

That letter referred to the instant action as “this Criminal Case
(D.E. 40 at 1.)

7

Correction Officers from Threatning [sic], Harassing and Cencoring
[sic] Petitioner’s In-Coming and Out-Going Legal Mail from Denying
the

Petitioner

Adequate

Medical

Care

and

to

be

Free

from

Retaliation and [sic] by Correctional Officials and to be Protected
from Harm" (D.E. 28), which was filed on February 28, 2012, also
bears the docket number for case number 90-2225-H, as well as the
various state-court docket numbers.

That document, however, does

not address Powers’ state-court criminal cases and, therefore, it
would not be appropriate to order that it be filed in case number
90-2225-H.

The document also does not appear to have any bearing

on Powers’ ADA claims, the subject of the instant suit, because the
filing does not include the docket number of this case, does not
refer to the ADA, does not allege that Powers was retaliated
against because he filed his ADA suit, and does not mention any
action by any named Defendant. Instead, it appears that the filing
asserts a new claim under 42 U.S.C. § 1983.
If Powers were the only Plaintiff, the Court might allow him
to amend his ADA suit to add this new claim.

Allowing an amendment

to raise entirely unrelated claims pertaining to one of four
plaintiffs against persons who are not parties to the instant case
and

arising

is

administratively

impractical and not in the interest of justice.

Leave to amend is

DENIED.

under

a

different

statute

If Powers seeks to pursue these claims, he must file a new

complaint under 42 U.S.C. § 1983 and must pay a new civil filing
fee.

8

Murdock has also filed several motions and documents.

On

August 3, 2011, he submitted a "Statement as to Each Defendant’s
Status/Involvement as to Discrimination Against Disabled Persons"
(D.E. 23), which was purportedly filed on behalf of all Plaintiffs
but was signed only by Murodock.

That document seeks, inter alia,

to dismiss the complaint against Defendant Mills, who has retired.
(Id. at 1.)

The Court CONSTRUES this filing as a voluntary

dismissal of this Plaintiff’s suit against Mills pursuant to
Federal Rule of Civil Procedure 41(a)(1)(A).

Thus, Murdock’s

claims against Mills are DISMISSED WITHOUT PREJUDICE.10
Since

his

transfer

to

the

additional motions and documents.

RMSI,

Murdock

has

submitted

On April 2, 2012, he filed two

documents. The first, titled "Motion to Add Newly Named Defendants
under

Permissive

Joinder

Pursuant

to

[Fed.

R.

Civ.

P.]

20(a)(2)(A)(B)" (D.E. 31), seeks to amend the complaint to add as
additional Defendants RMSI Deputy Warden Lolie Jones and RMSI
Medical

Administration

Director

Desiree

Andrews.

The

second

motion, named "Motion to Incorporate Documentary Evidence, i.e.
State Grievance as Required by Court Rule [and] Statute" (D.E. 32),
seeks leave to amend to incorporate grievances and other documents
addressing the provision of medical care to Murdock during his
confinement at the RMSI.

He filed two additional motions on April

23, 2012, namely, (1) another "Motion to Add Newly Named Defendants
under

Permissive

Joinder

Pursuant

10

to

[Fed.

R.

Civ.

P.]

Because Murdock cannot submit documents on behalf of any other
Plaintiff, this filing does not affect the claims of the remaining Plaintiffs
against Mills.

9

20(a)(2)(A)(B)" (D.E. 34), which seeks to add RMSI Warden Roland
Colson, RMSI Deputy Warden Lolie Jones, RMSI Food Service Manager
Robert Curtis, and RMSI Food Services Manager Linda Omtvedt, and
(2) another "Motion to Incorporate Documentary Evidence, i.e. State
Grievance as Required by Court Rule [and] Statute" (D.E. 35), which
seeks leave to amend to incorporate grievances and other documents
addressing the diet provided to Murdock during his confinement at
the RMSI.

The inmate has not, however, submitted an amended

pleading incorporating claims against the proposed new defendants.
Even if Murdock’s filings were all construed as proposed
amendments, it is not in the interest of justice to permit him to
assert new ADA claims against new defendants, all of whom are
located in the Middle District of Tennessee.

This is an ADA suit

filed by four inmates arising from their confinement at the NWCX.
Murdock is the only Plaintiff with claims arising out of his
confinement at the RMSI.

It is administratively impractical to

allow each Plaintiff to amend to make allegations pertaining only
to him that are unrelated to the original claims.

The Court also

is unable to grant injunctive relief on these claims because the
new defendants are all located outside this judicial district.
Therefore,

Murdock’s

motions

to

add

new

defendants

and

to

incorporate grievances are all DENIED without prejudice to his
right to file a new ADA suit incorporating these claims in the
Middle District of Tennessee.
On August 20, 2012, Murdock filed a motion to transfer this
case to the Middle District of Tennessee pursuant to Rule 9.1(a)(c)
10

of the Multidistrict Judicial Panel.

(D.E. 43.)

Although this

motion purports to be filed on behalf of all Plaintiffs, it was
signed only by him.

The case was transferred from the Middle

District of Tennessee because venue is proper in this district.
Murdock’s transfer to the RMSI does not change that analysis
because the claims asserted in the original complaint arise from
actions occurring in this district and most of the Defendants are
found in this district.

This motion is DENIED.

On September 7, 2012, Plaintiff Roberts filed a "Motion to
Permissively Join Newly Named Individuals as Defendants Pursuant to
[Fed. R. Civ. P.] 20(a)(2)(A)(B)" (D.E. 44), which sought to add
MCCX Health Services Administrator Dan Walker and MCCX Assistant
Warden for Programs Jennie Jobe. That filing also included factual
allegations addressing the medical care Roberts is receiving at the
MCCX.

This motion is DENIED for the reasons previously stated in

connection with the similar motions filed by Murdock.
IT IS SO ORDERED this 18th day of September 2012.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

11