IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 15, 2009
MOODY WOODROW TANKSLEY, ET. AL., PLAINTIFFS,
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET. AL., DEFENDANTS.
The opinion of the court was delivered by: Sidney R. Thomas, United States Circuit Judge Sitting by Designation
Plaintiffs are two state prisoners proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983.
This court has determined that each plaintiff should proceed separately on his own claim. The Federal Rules of Civil Procedure provide "[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately." Fed. R. Civ. P. 21. Courts have broad discretion regarding severance. See Davis v. Mason County, 927 F.2d 1473, 1479 (9th Cir. 1991).
In the instant action, plaintiffs are individuals in the custody of the California Department of Corrections and Rehabilitation, presently confined at Salinas Valley State Prison. In this court's experience, an action brought by multiple inmate plaintiffs proceeding pro se presents procedural problems that cause delay and confusion. Delay often arises from the frequent transfer of inmates to other facilities or institutions, the changes in address that occur when inmates are released to parole, and the difficulties faced by inmates who attempt to communicate with each other and with unincarcerated individuals.
Accordingly, the court will order that plaintiffs' claims be severed. Plaintiff Moody Woodrow Tanksley will proceed in this action, while plaintiff Mike J. Moreno will proceed in a civil action to be opened by the Clerk of the Court. Each plaintiff will proceed with his own action and will be solely responsible for his own action.
The Clerk of the Court will be directed to assign the new action to the same district judge and magistrate judge assigned to the instant action. The Clerk of the Court shall make appropriate adjustment in the assignment of civil cases to compensate for this reassignment.
Each plaintiff has filed a request for leave to proceed in forma pauperis. However, since the claims will be severed, each plaintiff will be given thirty (30) days to file, in his own action, an amended complaint and a new application for leave to proceed in forma pauperis, using the forms provided by the court with this order. Each plaintiff is cautioned that if this action proceeds further it is probable that each plaintiff will incur a liability in the amount of the $350.00 filing fee, which amount will be collected from his prison trust account.*fn1 See 28 U.S.C. § 1915(b).
Mr. Tanksley filed a letter with this court indicating that he has had difficulty successfully completing his application to proceed in forma pauperis and obtaining the necessary certification and trust account statement. The Clerk of the Court shall direct the Litigation Coordinator at Salinas Valley State Prison to assist Mr. Tanksley with his application to proceed in forma pauperis and to report back to the court within thirty (30) days on the progress Mr. Tanksley has made and whether officials at Salinas Valley State Prison have complied with Mr. Tanksley's requests to certify his application and provide his trust account statement.
In accordance with the above, IT IS HEREBY ORDERED that:
1. The claims of plaintiff Mike J. Moreno are severed from the claims of plaintiff Moody Woodrow Tanksley;
2. Plaintiff Moody Woodrow Tanksley shall proceed as the sole plaintiff in case No. 2:08-CV-02216-SRT;
3. The Clerk of the Court is directed to:
a. Open a separate civil action for plaintiff Mike J. Moreno;
b. Assign the new action to the district judge and magistrate judge to whom the instant case is assigned and make appropriate adjustment in the assignment of civil cases to compensate for such assignment;
c. File and docket a copy of this order in the file opened for plaintiff Mike J. Moreno;
d. Place a copy of the complaint filed March 10, 2009 in the file opened for plaintiff Mike J. Moreno;
e. Strike from the caption of each plaintiff's complaint the name of the other plaintiff;
f. Send each plaintiff an endorsed copy of his complaint bearing the amended caption and the case number assigned to his own individual action;
4. Each plaintiff's complaint is dismissed;
5. The Clerk of the Court is directed to send each plaintiff a new form for filing a civil rights action under 42 U.S.C. § 1983 and a new Application to Proceed In Forma Pauperis By a Prisoner;
6. The Clerk of Court is directed to forward a copy of this Order to the Litigation Coordinator at Salinas Valley State Prison. The Litigation Coordinator shall assist Mr. Tanksley in properly completing his application to proceed in forma pauperis. The Litigation Coordinator shall report back to the court within thirty (30) days on the status of Mr. Tanksley's application and whether the officials at Salinas Valley State Prison have provided the necessary documents when requested; and 7. Each plaintiff is granted thirty days from the date of service of this order to file an amended complaint and a new application to proceed in forma pauperis, using the forms provided by the court with this order. Each plaintiff's documents must bear the docket number assigned to his own individual case, and each complaint must be labeled "Amended Complaint." Each plaintiff must file an original and two copies of his amended complaint. Failure to file an amended complaint or a new application to proceed in forma pauperis in accordance with this order will result in the dismissal of this action.
IT IS SO ORDERED.