Unpublished Disposition, 841 F.2d 1128 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 841 F.2d 1128 (9th Cir. 1987)

Lawrence BROADNAX, Milton Brown, Danny G. Okada, ShermanLattimore, Thomas D. Sanchez, Stanley E. Jones, and JamesJohnson, On Behalf of All United States Federal PrisonersWho Are Similarly Situated, Plaintiffs-Appellants,v.BUREAU OF PRISONS, Pharm Chem Laboratories, Inc., AnaclinLaboratories, United States Parole Commission, United StatesProbation Department, and Community Treatment CenterPrograms, Defendants-Appellees.

No. 86-6361.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 8, 1987.* Decided March 3, 1988.

Before SNEED, PREGERSON and BOOCHEVER, Circuit Judges.


Lawrence Broadnax appeals the district court's dismissal of his pro se action challenging the urinalysis testing program and procedures administered by the federal prison system. We affirm in part and vacate and remand for reconsideration in part.


It all began when seven federal prisoners, incarcerated at the Federal Correctional Institution at Terminal Island, filed a complaint against the United States Bureau of Prisons (the Bureau), the United States Parole Commission, the United States Probation Department, and Pharm Chem Laboratories and Anaclin laboratories, two companies that perform drug testing analyses pursuant to a contract with the federal government. Their complaints appear to be grounded on the authority of Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). They appear to assert that the defendants unconstitutionally administer the federal drug testing program to prisoners and parolees. As a result they claim that they, and others similarly situated, are forced to stay in prison longer than they otherwise would, because positive tests result in "good time" not being credited to their prison terms and parole revocation. Plaintiffs apparently assert that a false positive result on a urinalysis test has caused either loss of "good time," removal of favorable terms of their confinement or parole, the revocation of their parole or probation, or delay of their parole release.

The complaint originally was filed on August 27, 1985. On November 14, 1985, the plaintiffs filed an ex parte application to compel the filing of an order to show cause together with an application for, and a proposed, temporary restraining order. The district court referred the application to a United States Magistrate, who promptly denied it, and, pursuant to 28 U.S.C. § 636(b) (1) (B) and General Order No. 194 of the district court for the Central District of California, thereupon ordered the Magistrate to file a report and recommendation. On January 28, 1986 the Magistrate responded by filing a Partial Report and Recommendation. Four of the seven plaintiffs (the others had been paroled or transferred to other prisons) filed objections to the report on February 19, 1986. On April 9, 1986 the remaining plaintiffs moved to compel issuance of summons and service on the defendants and for reconsideration of the previous denial of the ex parte application. The Magistrate denied the motions. This court denied a subsequently filed petition for mandamus.

The Magistrate then filed a Second Report and Recommendation to which the plaintiffs also filed objections. By now another plaintiff had been transferred to a different facility and another had been paroled.

After reviewing the pleadings and the Magistrate's two reports, the district court again agreed with the Magistrate's findings. On June 18, 1986, the court severed the claims of all the other plaintiffs from those of Broadnax for failure to meet the joinder requirements of Fed. R. Civ. P. 20 and then dismissed those plaintiffs. The district court then dismissed Broadnax' claim for want of prosecution. Plaintiffs filed notice of this appeal on August 18, 1986.


The district court had jurisdiction under 28 U.S.C. § 1331 (1982). The decision of the district court is final thus this court has jurisdiction under 28 U.S.C. § 1291 (1982).


Dismissal for lack of subject matter jurisdiction is reviewed de novo. Peter Starr Production Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir. 1986). Dismissal of an action for lack of prosecution and for failure to comply with the joinder requirements of Fed. R. Civ. P. 20 is reviewed for abuse of discretion. Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981); Desert Empire Bank v. Insurance Co. of N. Am., 623 F.2d 1371, 1375 (9th Cir. 1980). The same standard is used when a court reviews a district court's adoption of a Magistrate's Report and Recommendation pursuant to 28 U.S.C. § 636(b) (1) (B) (1982). United States v. Raddatz, 447 U.S. 667, 680-81 (1980).


The appellant's brief appears to challenge several decisions of the district court. First, he appeals the district court's dismissal for failure to make "a short and plain statement of the grounds upon which the court's jurisdiction depends" pursuant to Fed. R. Civ. P. 8(a) (1). Second, he asserts the district court abused its discretion (1) when it severed the plaintiff's complaints for failure to comply with the joinder requirements of Fed. R. Civ. P. 20; (2) when it dismissed the asserted class action for failure to comply with Fed. R. Civ. P. 23; (3) when it dismissed the complaint for lack of prosecution; and (4) by adopting the findings, conclusions, and recommendations of the United States Magistrate. Because we find the district court did not abuse its discretion in severing the claims and dismissing the other plaintiffs and in dismissing Broadnax' claim for failure to prosecute, we need not discuss Broadnax' other arguments.

A. Failure to Comply with Rule 20's Joinder Requirements.

Under Rule 20

persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative 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 these persons will arise in the action.

In Desert Empire Bank v. Insurance Co. of N. Am., 623 F.2d 1371 (9th Cir. 1980), this court adhered to Rule 20's command and echoed that joined partied must have a claim arising out of the same transaction or occurrence or series of transactions or occurrences and that a common question of law or fact must arise in the action. Id. at 1375. The district court has the discretion to decide whether the joinder complies with Rule 20 and it may "examine the other relevant factors in a case in order to determine whether the permissive joinder of a party will comport with the principles of fundamental fairness." Id.

In this case the Magistrate found that

The only common thread running through the factual statements in the present complaint is that each plaintiff believes that he was a victim of a false positive reading on a urinalysis test.... It is clear from a reading of the complaint "that each plaintiff's situation would have to be considered in detail [and] that the determination of facts and the scope of testimony with respect to one plaintiff would have little relevance to issues raised by another plaintiff." ... It is equally clear that joinder of the plaintiffs in this particular action would not serve to promote trial convenience or to expedite the final determination of disputes.

Magistrate's Partial Report and Recommendation, at 5 (quoting Martinez v. Safeway Stores, Inc. 66 F.R.D. 446, 448-49 (N.D. Cal. 1975). In his second Report and Recommendation, at 4, the Magistrate further noted that because the plaintiffs were constantly being moved about and because they failed to keep in touch with the court, there was further reason to find the joinder could not accomplish its purpose of expediting final determination of disputes.

Review of the complaint indicates that each plaintiff's experience with the urinalysis program is different.1  Thus, the claims of each plaintiff do not appear to stem from the same transaction or occurrence, even broadly defined. We affirm the decision of the district court to sever and dismiss the other plaintiffs' claims.

B. Dismissal for Lack of Prosecution.

A dismissal under Rule 41(b) for failure to prosecute is reviewed for abuse of discretion. Eldridge v. Block, No. 86-5851, slip op. at 9 (9th Cir. Dec. 22, 1987); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981). A finding of failure to prosecute should depend on a review of the facts of the particular case, and the court should consider all pertinent circumstances in exercising its discretion. See Link v. Wabash R.R. Co., 370 U.S. 626, 634-35 (1962); 5 J. Moore, J. Lucas & J. Wicker, Moore's Federal Practice p 41.11, at 41-115 (2d ed. 1987).

In this case, Broadnax was given a chance to file an amended complaint but he did not do so. On January 28, 1986, the Magistrate issued a separate Minute Order dismissing the complaint with leave to amend as to Broadnax because the Magistrate believed the complaint, as filed, failed to raise a case or controversy. On February 18, 1986, Broadnax filed plaintiffs' objections to the Magistrate's Report and Recommendation and a day later filed a petition for writ of mandamus to the Ninth Circuit asking this court to compel the Magistrate to issue a summons. As indicated earlier, this petition was denied. On May 23, Broadnax filed an objection to the Magistrate's Amended Report and Recommendation, but he has never filed an amended complaint. The Magistrate found that the failure to respond constituted grounds for dismissal under the court's "inherent power to provide for the orderly and expeditious disposition of cases." Magistrate's Second Report and Recommendation, at 6 (citing Link v. Wabash, 370 U.S. at 630-31). The district court adopted this finding after "reviewing the complaint and all of the records" pursuant to 28 U.S.C. § 636(b) (1) (B) (1982).

Under Rule 41(b), unless a court specifies otherwise, a dismissal for failure to prosecute operates as an adjudication on the merits. Fed. R. Civ. P. 41(b). In considering whether or not there has been an abuse of discretion in a dismissal under Rule 41(b), we look to see whether or not a district court might not have adopted initially other less drastic alternatives. Nevijel v. North Coast Life Ins., 651 F.2d 671, 674 (9th Cir. 1981) (citing Industrial Bldg. Materials Co. v. Interchemical Corp., 437 F.2d 1336, 1339 (9th Cir. 1970). In this case, it appears that the court below failed to consider an alternative to dismissal with prejudice.2 

Although the complaint in this case is defective, Broadnax may be able to state a claim if given one last opportunity. A dismissal without prejudice would provide such an opportunity. There is no record to indicate that the lower court considered such dismissal or any other alternative remedy. Therefore, we find that the district court abused its discretion in this matter. The case is remanded to the district court for consideration consistent with this opinion.


The district court's decision to sever and dismiss the claims of plaintiffs Brown, Lattimore, Okada, Jones, Sanchez and Johnson without prejudice is affirmed. The decision to dismiss Broadnax' claim for failure to prosecute is vacated and remanded for consideration consistent with this opinion.


The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


The different fact situations the plaintiffs allege may be demonstrated by recounting the gist of several of their allegations. Plaintiff Brown was subjected to 29 urinalyses while in a halfway house. Several were positive for cocaine. He said he was a diabetic and thus did not take cocaine and that it must have been a mistake or a false positive test result. He alleges that he was placed in "Special Drug Aftercare." He was later allegedly told by a Security Monitor that it had all been a mistake but the Monitor was scared to tell anyone or testify. At some later point his parole was revoked. Plaintiff's Original Complaint, at 17-21

Plaintiff Lattimore was on parole. He apparently was tested positive at some point and ordered to enter the Residential Drug Treatment Center. He alleges that his results must have been false positive. His parole was apparently revoked. Id. at 21-24.

Plaintiff Okada was in a "C-Unit facility" and was tested positive for some drug. He apparently is alleging some procedural irregularity in the administrative process as well as being the victim of a false positive test. He lost 30 days of "good time" and 30 days of "segregation." Id. at 24-25.

Plaintiff Jones apparently tested positive for THC while in prison. He is apparently alleging that his incident report was falsely altered to show a positive result. He also appears to be complaining about the process by which a committee punished him for testing positive and the specific process by which his urine samples were treated and tested. Id. at 26-29.


If the dismissal with prejudice stands, Broadnax could be barred by res judicata from later asserting, perhaps with the assistance of counsel or in a proper class action, that the urinalysis testing procedures at the Federal Correctional Institution at Terminal Island are negligently administered and violate his constitutional rights

Another possible alternative in this type of case is court appointment of an attorney to represent the plaintiff. A court may request an attorney to represent any person unable to employ counsel. 28 U.S.C. § 1915(d) (1982). Appointment of counsel in a civil case is, as is the privilege of proceeding in forma pauperis, a matter of discretion for the district court. United States v. Madden, 352 F.2d 792, 793 (9th Cir. 1965). In civil actions for damages, however, appointment of counsel should be allowed only in exceptional cases. Id. at 794. Plaintiff Broadnax is asserting a claim for damages, as well as claims for injunctive and declaratory relief.