Whitmore v. Western Regional Jail et al, No. 3:2018cv01483 - Document 1 (S.D.W. Va. 2018)

Court Description: MEMORANDUM OPINION AND ORDER directing the Clerk to open a new civil action for Zachary Whitmore, listing the same defendants as those in 3:18-cv-01471; once the new civil action is open, Zachary Whitmore shall be terminated as a party in 3:18-cv-01471. Signed by Magistrate Judge Cheryl A. Eifert on 11/30/2018. (cc: plaintiff) (jsa)

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Whitmore v. Western Regional Jail et al Doc. 1 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION JOSEPH GEN ET an d ZACH ARY W H ITMORE, Plain tiffs , v. Cas e N o . 3 :18 -cv-0 14 71 W ESTERN REGION AL JAIL; CAPTAIN ALD RAGE; CORP. EIRW IN ; SERGEAN T FRAN KLIN ; CORP. YOU RK; C.O. GU ICE; C.O. N APPER; C.O. IN D ICOT; C.O.TH EU ITH EN ; C.O.PAU L; an d C.O. H U GH S, D e fe n d an ts . MEMORAN D U M OPIN ION an d ORD ER Two prisoners at the Western Regional J ail in Barboursville, West Virginia have jointly filed a Com plaint pursuant to 42 U.S.C. § 1983 alleging that the defendants are violating the Eighth Am endm ent to the United States Constitution by subjecting the prisoners to inhum ane living conditions at the J ail; including, exposing them to hum an waste; leaving them without clean clothing for days and weeks; denying them edible food; and denying them exercise and recreation. Plaintiffs request prospective injunctive relief and m onetary dam ages. Although the United States Court of Appeals for the Fourth Circuit has not explicitly ruled that m ultiple prisoners are prohibited from joining together as plaintiffs in a single § 1983 action, at least one circuit has determ ined that the Prison Litigation Reform Act (“PLRA”) bars such joinders. Hubbard v. Haley , 262 F.3d 1194, 1198 (11th Dockets.Justia.com Cir. 20 0 1) (holding that PRLA requirem ent of a separate filing fee for each prisoner prevents prisoners from joining claim s under Fed. R. Civ. P. 20 ). “Even in light of m ore flexible holdings in other circuits regarding the perm issive joinder of m ultiple prisoner plaintiffs, see Hagan v. Rogers, 570 F.3d 146, 157 (3d Cir. 20 0 9); Boriboune v. Berge, 391 F.3d 852, 855 (7th Cir. 20 0 4); In re Prison Litigation Reform Act, 10 5 F.3d 1131, 1137-38 (6th Cir. 1997), courts in [the Fourth Circuit] have found the analysis in Hubbard persuasive and have declined to perm it prisoner plaintiffs to join in one civil action.” Griffin v. Nettles, No. 4:18-cv-0 2469-RBH-TER, 20 18 WL 470 1293 (D.S.C. Nov. 22, 20 13) (collecting cases); also Galeas v. United States, No. 5:14-CT-3225-F, 20 15 WL 1433547, at *1 (E.D.N.C. Mar. 27, 20 15); Flem ing v. Francis, No. 5:13– CV– 21991, 20 14 WL 2589755, at *1 (S.D.W. Va. J une 10 , 20 14) (“The undersigned finds that m ultipleprisoner plaintiffs m ay not proceed in form a pauperis in the sam e civil action”); W atterson v. Terrell, No. 1:10 CV184– RJ C, 20 10 WL 3522331, at *1 (W.D.N.C. Sept. 7, 20 10 ) (finding that m ultiple plaintiffs subject to the PLRA m ay not join a lawsuit “so as to pro-rate the m andatory filing fee.”); Greene v. Phipps, No. 7:0 9-cv-0 0 10 0 , 20 0 9 WL 30 55232, at *6 (W.D. Va. Sept. 24, 20 0 9) (citing to the conclusion in Hubbard that by joining parties and claim s in one case, prisoners seek to bypass the PLRA’s three-strikes provision and filing fee requirement). In addition to the courts’ disinclination to allow m ultiple prisoners to join in one § 1983 com plaint, the law is well-settled that “it is plain error for a pro se inm ate to represent other inm ates in a class action,” Fow ler v. Lee, 18 Fed. Appx. 164, 165 (4th Cir. 20 0 1). Moreover, while the living conditions about which the plaintiffs com plain are collectively described as inhum ane, it is likely that the plaintiffs have been exposed to different circum stances and varying levels of harm at different times, involving different transactions with different defendants, resulting in different injuries. Consequently, joinder is not appropriate for the additional reason that each plaintiff’s claim will require individualized determinations. See Griffin, 20 18 WL 470 1293, at *1. Accordingly, the claim s of the plaintiffs m ust be separated into discreet civil actions and m ust undergo a prelim inary review pursuant to 28 U.S.C. § 1915(e)(2). Th e re fo re , th e Cle rk o f Co u rt is d ire cte d as fo llo w s : This civil action, 3:18-cv-0 1471, shall pertain only to Plaintiff J oseph Genet and shall be styled J oseph Genet v. Western Regional J ail; Captain Aldrage; Corp. Eirwin; Sergeant Franklin; Corp. Yourk; C.O. Guice; C.O. Napper; C.O. Indicot; C.O.Theuithen; C.O.Paul; and C.O. Hughs. The Clerk is ORD ERED to open a new civil action for Zachary Whitm ore, listing the sam e defendants as those nam ed above. Once the new civil action is open, Zachary Whitm ore shall be term inated as a party in this action. In the newlyopened action, this Order shall be docketed, followed by the Com plaint filed herein, and the Standing Order in Re Assignm ent of Magistrate J udges. Upon the opening and docketing of the new case, the undersigned will conduct a prelim inary review of each case. The Clerk is directed to provide a copy of this Order to the plaintiffs. EN TERED : Novem ber 30 , 20 18

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