Heilman et al v. Thumser et al
Filing
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ORDER signed by Magistrate Judge Edmund F. Brennan on 11/8/2011 ORDERING that permissive joinder of the named plaintiffs in this action is DENIED, with the exception of Thomas Heilman, all other plaintiffs are DISMISSED from this action; Plaintiff He ilman's 9 motion for a court order to permit plaintiffs to meet is DENIED; plaintiff Heilman's 2 request to proceed in forma pauperis is GRANTD; plaintiff Heilman must pay the statutory filing fee of $350 for this action to be collected and paid in accordance with the concurrent CDC order; plaintiff Heilman's complaint is dismissed with leave to amend within 30 days.(Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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THOMAS JOHN HEILMAN, et al,
Plaintiffs,
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vs.
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No. CIV S-11-1907 EFB P
G.A. THUMSER, et al.,
Defendants.
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ORDER
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Pending before the court is plaintiff Thomas Heilman’s civil rights complaint,
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purportedly brought on behalf of nine other plaintiffs, who are all currently incarcerated at
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California Medical Facility. Also pending is Heilman’s motion for a court order permitting the
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plaintiffs to meet to discuss this action, and a motion for leave to proceed in forma pauperis.
Pursuant to 28 U.S.C. § 1915A, the court shall review “a complaint in a civil action in
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which a prisoner seeks redress from a governmental entity or officer or employee of a
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governmental entity.” 28 U.S.C. § 1915A(a). “On review, the court shall identify cognizable
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claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous,
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malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief
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from a defendant who is immune from such relief.” Id. § 1915A(b).
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The complaint filed in this action is signed by plaintiff Thomas Heilman, who identifies
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himself as a the “lead plaintiff” in this action. See Dckt. No. 1 at 8, 19. However, this action
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may not proceed as a class action. Heilman, who is incarcerated and proceeding pro se, cannot
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“fairly and adequately protect the interests of the class,” as required by Rule 23(a)(4) of the
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Federal Rules of Civil Procedure. See Halet v. Wend Inv. Co., 672 F.2d 1305, 1308 (9th Cir.
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1982) (stating that a party must assert his own rights, not those of third parties) (citing Duke
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Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 80 (1978)); Warth v. Seldin, 422 U.S.
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490, 499 (1974) (“The Art. III judicial power exists only to redress or otherwise to protect
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against injury to the complaining party, even though the court’s judgment may benefit others
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collaterally. A federal court’s jurisdiction therefore can be invoked only when the plaintiff
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himself has suffered ‘some threatened or actual injury resulting from the putatively illegal action
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. . . .’”); see also Swygert v. Veal, 2008 U.S. Dist. LEXIS 34655, 2008 WL 724193, at *3 (E.D.
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Cal. Mar. 17, 2008) (“It is well established that a layperson cannot ordinarily represent the
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interests of a class. . . . This rule becomes almost absolute when, as here, the putative class
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representative is incarcerated and proceeding pro se.”). Moreover, plaintiff has not complied
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with the requirements of Rule 23. This action, therefore, will not be construed as a class action
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and instead will be construed as an individual civil suit brought by plaintiff, Thomas Heilman.
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The additional nine plaintiffs, who have filed declarations consenting to “being included”
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in this litigation, may not be joined in this action, and instead, must proceed with their own
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separate lawsuits. See Dckt. No. 1 at 23-30. Generally, “Rule 20(a) of the Federal Rules of
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Civil Procedure permits the joinder of plaintiffs in one action if: (1) the plaintiffs assert any right
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to relief arising out of the same transaction, occurrence, or series of transactions or occurrences;
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and (2) there are common questions of law or fact. If the test for permissive joinder is not
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satisfied, a court, in its discretion, may sever the misjoined parties, so long as no substantial right
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will be prejudiced by the severance.” Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997)
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(internal citations omitted); see Fed. R. Civ. P. 21 (“Misjoinder of parties is not a ground for
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dismissing an action. On motion or on its own, the court may at any time, on just terms, add or
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drop a party. The court may also sever any claim against a party.”). However, actions brought
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by multiple prisoners in pro se present unique problems not presented by ordinary civil litigation.
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For example, transfer of one or more plaintiffs to different institutions or release on parole, as
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well as the challenges to communication among plaintiffs presented by confinement, may cause
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delay and confusion.
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In addition, the interplay of the filing fee provisions in the Prison Litigation Reform Act
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of 1995 (“PLRA”) suggests that prisoners may not bring multi-plaintiff actions, but rather must
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each proceed separately. To proceed with a civil action each plaintiff must pay the $350 filing
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fee required by 28 U.S.C. § 1914(a) or request leave to proceed in forma pauperis and submit the
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affidavit and trust account statement required by 28 U.S.C. § 1915(a). The PLRA expressly
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requires that a prisoner, where proceeding in forma pauperis, pay the full amount of the filing
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fee. 28 U.S.C. § 1915(b)(1). This provision reflected Congress’s intent to reduce the volume of
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frivolous prisoner litigation in the federal courts. Hubbard v. Haley, 262 F.3d 1194, 1196-97
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(11th Cir. 2001); 141 Cong. Rec. S7526 (daily ed. May 25, 1995) (statement of Sen. Jon Kyl)
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(“Section 2 will require prisoners to pay a very small share of the large burden they place on the
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federal judicial system by paying a small filing fee on commencement of lawsuits. In doing so,
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the provision will deter frivolous inmate lawsuits. The modest monetary outlay will force
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prisoners to think twice about the case and not just file reflexively.”); see also Oliver v. Keller,
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289 F.3d 623, 627-28 (9th Cir. 2002). In order not to undermine the PLRA’s deterrent purpose,
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courts have agreed that prisoner-plaintiffs who proceed together in one action must each pay the
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full filing fee. E.g., Boriboune v. Berge, 391 F.3d 852, 855-56 (7th Cir. 2004); Hubbard, 262
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F.3d at 1197-98. However, 28 U.S.C. § 1915(b)(3) provides that “in no event shall the filing fee
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collected exceed the amount of fees permitted by statute for the commencement of a civil
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action.” If multiple prisoners were permitted to proceed with a joint action, and each paid the
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full filing fee in accordance with § 1915(b)(1) and the apparent intent of Congress, the amount of
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fees collected would exceed the amount permitted by statute for commencement of the action, in
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violation of § 1915(b)(3).
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To avoid the problems related to case-management and filing fees, permissive joinder of
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the named plaintiffs in this action is denied. With the exception of plaintiff Thomas Heilman, all
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other plaintiffs are dismissed from this action. Accordingly, Heilman’s motion for a court order
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allowing all plaintiffs to meet to discuss this case is also denied.
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Plaintiff Thomas Heilman has requested leave to proceed in forma pauperis pursuant to
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28 U.S.C. § 1915. Dckt. No. 2. The application makes the showing required by 28 U.S.C.
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§ 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having
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custody of plaintiff Heilman to collect and forward the appropriate monthly payments for the
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filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).
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If plaintiff Heilman wishes to proceed with this action as an individual suit, he must file
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an amended complaint that links specific acts or omissions by specific defendants to a
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deprivation of his rights only, and not to a purported class of plaintiffs. Any amended complaint
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must adhere to the following requirements.
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Any amended complaint shall identify each defendant in both the caption and the body of
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the amended complaint, and clearly set forth the allegations against each such defendant.
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Pursuant to Rule 8 of the Federal Rules of Civil Procedure, any amended complaint must include
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“a short and plain statement of the claim” showing entitlement to relief. Fed. R. Civ. P. 8(a)(2).
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Any amended complaint must be complete in itself without reference to any prior
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pleading. E.D. Cal. Local Rule 220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once
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plaintiff files an amended complaint, the original pleading is superseded.
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It must show that the federal court has jurisdiction and that plaintiff’s action is brought in
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the right place, that plaintiff is entitled to relief if plaintiff’s allegations are true, and must
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contain a request for particular relief. Plaintiff must identify as a defendant only persons who
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personally participated in a substantial way in depriving plaintiff of a federal constitutional right.
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Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978) (a person subjects another to the
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deprivation of a constitutional right if he does an act, participates in another’s act or omits to
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perform an act he is legally required to do that causes the alleged deprivation).
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It appears plaintiff Heilman intends to pursue Eighth Amendment claims based on the
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alleged denial of out-of-cell exercise from March 2010 to March 2011. Plaintiff may not change
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the nature of this suit by alleging new, unrelated claims in an amended complaint. George v.
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Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).
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Plaintiff Heilman is also hereby informed of the following legal standards. In order to
state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) the violation of a federal
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constitutional or statutory right; and (2) that the violation was committed by a person acting
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under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297
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F.3d 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless
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the facts establish the defendant’s personal involvement in the alleged rights deprivation, as
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there is no respondeat superior liability under section 1983. Jones, 297 F.3d at 934. That is,
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plaintiff may not sue any official on the theory that the official is liable for the unconstitutional
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conduct of his or her subordinates. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009). Because
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respondeat superior liability is inapplicable to § 1983 suits, “a plaintiff must plead that each
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Government-official defendant, through the official’s own individual actions, has violated the
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Constitution.” Id. It is plaintiff’s responsibility to allege facts to state a plausible claim for
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relief. Iqbal, 129 S. Ct. at 1949; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
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A prison official violates the Eighth Amendment’s proscription of cruel and unusual
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punishment where he or she deprives a prisoner of the minimal civilized measure of life’s
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necessities with a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834
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(1994). To state such an Eighth Amendment claim, a prisoner must allege facts showing that (1)
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the defendant prison official’s conduct deprived him or her of the minimal civilized measure of
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life’s necessities and (2) that the defendant acted with deliberate indifference to the prisoner’s
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health or safety. Id. at 834.
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Accordingly, it is ordered that:
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1. Permissive joinder of the named plaintiffs in this action is denied. With the exception
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of Thomas Heilman, all other plaintiffs – Rocky Bundesen, Wayne Shaver, Andre Supek,
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Monroe Cooper, Dewitt Williams, Curtis Powell, Anthony Arrington, David Habig, and Gus
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Lavierierre – are dismissed from this action
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2. Plaintiff Heilman’s August 3, 2011 motion for a court order to permit plaintiffs to
meet is denied.
3. Plaintiff Heilman’s request to proceed in forma pauperis is granted.
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4. Plaintiff Heilman must pay the statutory filing fee of $350 for this action. All
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payments shall be collected and paid in accordance with the notice to the Director of the
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California Department of Corrections and Rehabilitation filed concurrently herewith.
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5. Plaintiff Heilman’s complaint is dismissed with leave to amend within 30 days. The
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amended complaint must bear the docket number assigned to this case and be titled “First
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Amended Complaint.” Failure to comply with this order will result in a this action being
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dismissed.
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Dated: November 8, 2011.
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