Muehl v. Thurmer et al

Filing 10

ORDER plaintiff to advise by 2/16/09 which lawsuits he would like to pursue pursuant to George v. Smith . Signed by Chief Judge Barbara B Crabb on 1/30/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------MICHAEL MUEHL, P eti ti o n er , v. M IC H A E L THURMER, Warden; B AU ER , Lieutenant; G AR Y ANKARLO, Psychological Services Supervisor; T O D D CALLISTER, Psychiatrist; BELINDA SCHRUBBE, Health Service Manager; PAU L SUMNICHT, Doctor; M AR Y GORSKE, Registered Nurse Practitioner; M AR Y SLINGER, Registered Nurse; FR AN JENNINGS, Registered Nurse; G AIL WALTZ, Registered Nurse; C H A R L E N E REITZ, Registered Nurse; and B R U C E DUMONTIER, Dentist; R espo nd ents. --------------------------------------------In this prisoner civil rights case brought under 42 U.S.C. § 1983, petitioner Michael M u e h l has filed a proposed complaint in which he raises a number of claims primarily invo lving various alleged failures to provide him with medical, dental and mental health care. H e seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915. In a previous order ORDER 0 9 - cv -1 6 - b b c

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I concluded that petitioner was not required to make an initial partial payment because his priso n trust found account statements show that he has no means to do so. 28 U.S.C. § 19 15 (b)(4). B ecau se petitioner is a prisoner, I am required under the 1996 Prison Litigation R eform Act to screen his complaint and dismiss any claims that are legally frivolous, m alicious, fail to state a claim upon which relief may be granted or ask for money damages fro m a defendant who by law cannot be sued for money damages. 28 U.S.C. §§ 1915 and 19 15 A. Having reviewed petitioner's complaint, I conclude that he may not proceed at this tim e because his complaint violates Fed. R. Civ. P. 20. R u le 20 prohibits a plaintiff from asserting unrelated claims against different defendan ts or sets of defendants in the same lawsuit. Multiple defendants may not be joined in a single action unless the plaintiff asserts at least one claim to relief against each resp o nd en t that arises out of the same transaction or occurrence or series of transactions or o ccu rren ces and presents questions of law or fact common to all. George v. Smith, 507 F.3d 60 5, 607 (7th Cir. 2007); 3A Moore's Federal Practice § 20.06, at 2036-2045 (2d ed.1978). Although Fed. R. Civ. P. 18 allows a party to join unrelated claims against defendants in a suit, this rule applies only after the requirements for joinder of parties have been satisfied under Rule 20, Intercon Research Assn., Ltd. v. Dresser Ind., Inc., 696 F.2d 53, 57 (7th Cir. 1983) (quoting 7 Charles Alan Wright et al., Federal Practice & Procedure), which 2

m eans that the core set of allowable defendants must be determined under Rule 20 before a plaintiff may join additional unrelated claims against one or more of those defendants u nd er Rule 18. This means also that under Rule 18, a party cannot join claims involving any d efen dan t outside the group identified under Rule 20 . Fo r example, a plaintiff could have one lawsuit for breach of contract against defendants Smith, Jones, Wilson and Garcia and an unrelated lawsuit for personal injury against defendants Smith, Jones and Brown. If the plaintiff wanted to proceed with both claim s in the same lawsuit under Rules 18 and 20, he would have to dismiss Wilson and G arcia from the first lawsuit or he would have to dismiss Brown from the second lawsuit. In this way, the same "core" of defendants (Smith and Jones) is common to both claims. Applying these rules to petitioner's complaint, I conclude that petitioner is raising claim s that belong in as many as six different lawsuits: · L aw s uit #1: respondents Belinda Schrubbe, Mary Slinger, Fran Jennings, Charlene R eitz and Gail Waltz failed to provide petitioner adequate treatment for a MRSA in fectio n , beginning in October 2007; · L a w s ui t #2: in November and December 2007 respondent Michael Thurmer was aw a re that petitioner was at risk for suicide but he failed to take any action to stop petition er from harming himself; respondents Reitz, Bauer and Waltz failed to p ro p erly dress petitioner's wounds after he cut his wrist in December 2007; 3

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L aw suit #3: in March 2008, respondents Gorske and Schrubbe failed to provide him w i th adequate medication for his chronic shoulder pain;

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L aw suit #4: on two occasions after petitioner cut himself in October and November 20 08 , respondent Paul Sumnicht failed to properly suture petitioner's wounds; when petitioner complained to respondent Schrubbe, she did not respond reasonably;

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L aw suit #5: from October 2007 to January 2008, respondent Bruce DuMontier un reason ably delayed dental care to petitioner;

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L aw suit #6: in 2008 respondent Todd Callister refused to take petitioner off a m edication for Attention Deficit Disorder that caused petitioner to have hallucinatio ns; after petitioner filed a grievance about this, respondent Callister stopp ed all prescriptions for petitioner's ADD, a decision approved by respondents G ary Ankarlo and Michael Thurmer; this is preventing petitioner from preparing a po stcon viction motion because he is unable to concentrate.

In addition to these claims, petitioner discussed other incidents in his complaint, but I have excluded those. Because he did not identify particular respondents who were involved, I assum e that he does not intend to raise those incidents as separate claims. U n d er George, I may apply the filing fee petitioner owes in this case to only one of the lawsuits I have identified above. Petitioner will have to choose which lawsuit that is. That lawsuit will be the only lawsuit assigned to this case number. 4

As for the other lawsuits, petitioner has a more difficult choice. He may choose to pursu e each lawsuit separately. In that case, he will be required to pay a separate filing fee for each case he pursues. He will not be required to make any initial payment because he p resen tly has no means with which to make the payment, but he will not be relieved of ow ing the full filing fee for each case. In addition, petitioner may be subjected to a separate strike for each of the separate lawsuits that he pursues if any claim in the lawsuit is dismissed for failure to state a claim upon which relief may be granted or because it is legally meritless. As petitioner may be aware, once a prisoner receives three strikes, he is not able to proceed in new lawsuits without first paying the full filing fee except in very narrow circumstances. 2 8 U.S.C. § 1915(g). If petitioner wishes to combine any of these lawsuits without paying m u ltip le filing fees, he will have to dismiss the respondents who prevent him from complying w ith Rule 20. Alternatively, petitioner may choose to dismiss any or all of his remaining lawsuits vo lu ntarily. If he chooses this latter route, petitioner will not owe additional filing fees or face strikes for those lawsuits. Any lawsuit dismissed voluntarily would be dismissed without prejudice, so petitioner would be able to bring it at another time. Petition er should be aware that because it is not clear at this time which of his sep arate lawsuits he will pursue, I have not assessed the merits of the claims raised in any of the lawsuits identified above. Once petitioner identifies the suits he wants to continue to 5

litigate, I will screen the individual actions that remain as required under 28 U.S.C. § 1915 (e)(2). Because petitioner faces filing fees and potential strikes for each lawsuit he p u r s ues, he should consider carefully the merits and relative importance of each of his po tential lawsuits when choosing which of them he wishes to pursue.

OR DER IT IS ORDERED that 1. Petitioner Michael Muehl may have until February 16, 2009, to identify for the court the separately numbered lawsuit identified in the body of this opinion on which he w ishes to proceed under the number assigned to this case. 2. Petitioner may have until February 16, 2009, in which to advise the court which o f the remaining separately numbered lawsuits he will prosecute, if any, and which he will w ithdraw voluntarily. 3. For any lawsuit that petitioner dismisses voluntarily, he will not owe a filing fee. 4. For each lawsuit that petitioner advises the court he intends to prosecute (other than the one petitioner chooses to keep assigned to this case number), he will owe a separate $350 filing fee, but he will not be assessed an initial partial payment because he presently has no means with which to make such a payment. 5. If petitioner fails to respond to this order by February 16, I will enter an order 6

dism issing the lawsuit as it presently exists without prejudice for petitioner's failure to p r o s e c u t e. E n tered this 30t h day of January, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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