The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS MISJOINED DEFENDANTS AND SEVER CLAIMS (Doc. 221.) ORDER FOR THIS ACTION TO PROCEED ONLY AGAINST DEFENDANT MEANS ON PLAINTIFF'S EIGHTH AMENDMENT FAILURE TO PROTECT CLAIM, AND DISMISSING ALL REMAINING CLAIMS AND DEFENDANTS FROM THIS ACTION, WITHOUT PREJUDICE TO THE INSTITUTION OF NEW, SEPARATE ACTIONS
Plaintiff, Gregorio C. Funtanilla, Jr., ("Plaintiff"), a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 16, 2002. This action now proceeds on Plaintiff's second amended complaint filed on March 10, 2003, against defendants Atkinson, Brown, Buckley, Castillo, Galaza, Gonzales, Martinez, Means, Medrano, Salinas, Streeter, Thomas, Vella, and Yates.*fn1 (Doc. 36.)
On July 27, 2009, defendants Atkinson, Brown, Buckley, Castillo, Galaza, Gonzales, Martinez, Means, Medrano, Streeter, Thomas, Vella, and Yates ("Defendants") filed a motion to dismiss misjoined defendants and sever claims. (Doc. 221.) On March 16, 2010, Plaintiff filed an opposition to the motion. (Doc. 240.) On March 18, 2010, Defendants filed a reply to the opposition. (Doc. 241.)
II. PLAINTIFF'S REMAINING CLAIMS
Defendants correctly characterize the claims remaining in this action as follows:*fn2
(1) Against defendant Means for an Eighth Amendment failure to protect claim, for failing to place inmate Manago on Plaintiff's enemy list;
(2) Against defendants Medrano and Thomas for an Eighth Amendment failure to protect claim, for calling Plaintiff a "snitch" and "sex offender" in the presence of other inmates;
(3) Against defendants Gonzalez and Atkinson for a First Amendment retaliation claim, for throwing away Plaintiff's legal materials in retaliation for filing a personal injury lawsuit against Corcoran prison staff;
(4) Against defendants Vella, Means and Yates for violations of the Due Process Clause and First Amendment, for retaining Plaintiff on an indeterminate SHU term in retaliation against him for litigating against staff and filing appeals;
(5) Against defendants Streeter, Castillo, Buckley and Salinas for a First Amendment claim, for failing to respond to Plaintiff's appeals in retaliation against him for filing administrative grievances;
(6) Against defendants Vella, Brown and Galaza for an Eighth Amendment conditions of confinement claim, for denying Plaintiff out-of-cell exercise; and
(7) Against defendants Martinez, Medrano and Thomas for an Eighth Amendment medical claim, for ignoring Plaintiff's requests for medication.
"The joinder of claims against multiple defendants in a single action is governed by Federal Rule of Civil Procedure 20(a) which provides that 'persons may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action. Fed.R.Civ.P. 20(a)(2) (emphasis added).'" Coalition for a Sustainable Delta v. United States Fish and Wildlife Service, No. 1:09-cv-480 OWW GSA, 2009 WL 3857417, at *2 (E.D. Cal. Nov. 17, 2009). "The permissive joinder rule 'is to be construed liberally in order to promote trial convenience and to expedite the final determination of disputes, thereby preventing multiple lawsuits.'" Id. (quoting League to Save Lake Tahoe v. Tahoe Reg'l Planning Agency, 558 F.2d 914, 917 (9th Cir. 1997)). "The purpose of Rule 20(a) is to address the 'broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.'" Id. (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)).
Under Rule 21, "[If] the test for permissive joinder is not satisfied, a court, in its discretion, may sever the misjoined parties, so long as no substantial right will be prejudiced by the severance." Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997). "Misjoinder of parties is not a ground for dismissing an action." Fed.R.Civ.P. 21. Upon a finding of misjoinder, a court has "two remedial options: (a) misjoined parties may be dropped 'on such terms as are just'; or (2) any claims against misjoined parties 'may be severed and proceeded with separately." Fed.R.Civ.P. 21; also see DirecTV, Inc. v. Leto, 467 F.3d 842, 845 (3rd Cir. 2006).
The district court may also sever the trial in order to avoid prejudice. See Fed.R.Civ.P. 20(b). "For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third party claims." Fed.R.Civ.P. 42(b).
Defendants move to dismiss the misjoined defendants under Rule 21 of the Federal Rules of Civil Procedure and sever the claims against them from this action, based on the fact that Plaintiff's alleged claims against them do not arise from the same transactions and occurrences and do not share common questions of law or fact. Defendants move to dismiss, without prejudice, all claims in this action except for the Eighth Amendment failure to protect claim against defendant Means.
In the alternative, should the court find common questions of law or fact in the claims alleged against the individual defendants, Defendants move to sever the individual defendants and the asserted claims against them and schedule separate trials, under Rules 20(b) and 42(b) of the Federal Rules of Civil Procedure, because the potential confusion to the jury and prejudice to Defendants offsets any possible benefits of a joint trial.
As a threshold issue, Plaintiff argues that Defendants have waived the defense that misjoined defendants should be dismissed and claims should be severed, because this action has been proceeding since 2002, and Defendants waited years to file this motion. Plaintiff asserts that the cases Defendants rely on are not on point because unlike this case, they all relate to misjoinder and severance issues which were addressed soon after the complaint was filed. Plaintiff argues that because Defendants failed to assert an affirmative defense regarding misjoined claims and Defendants in their answer filed October 7, 2004, they have waived the defense.
Defendants reply that Plaintiff's argument is without merit, because improper joinder is not an affirmative defense, and the court may, at any time, by motion or on its own, add or ...