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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
11 MARVIN HARRIS, et al., 1:21-cv-01452-DAD-GSA-PC
12 ORDER SEVERING PLAINTIFFS’ Plaintiff, CLAIMS AND DIRECTING CLERK’S 13 OFFICE TO OPEN NEW CASE FOR vs. PLAINTIFF ADAM E. 14 CURRY, et al., THIRTY-DAY DEADLINE FOR 15 PLAINTIFFS KENNEDY ROBINSON AND Defendants. ADAM E. TO EACH FILE AN AMENDED 16 COMPLAINT NOT EXCEEDING 25 PAGES TOTAL IN THEIR 17 SEPARATE/INDIVIDUAL CASES
18 THIRTY-DAY DEADLINE FOR PLAINTIFFS KENNEDY ROBINSON AND 19 ADAM E. TO EACH SUBMIT AN APPLICATION TO PROCEED IN FORMA 20 PAUPERIS, OR PAY THE $402.00 FILING FEE, IN THEIR SEPARATE/INDIVIDUAL 21 CASES
22 ORDER FOR CLERK TO REFLECT ON THE COURT’S DOCKET THAT 23 PLAINTIFF ADAM E. HAS BEEN TERMINATED FROM THIS CASE 24
26 27 I. BACKGROUND 28 1 Kennedy Robinson and Adam E. (“Plaintiffs”) are state prisoners proceeding pro se with 2 this civil rights action pursuant to 42 U.S.C. § 1983. On September 29, 2021, Plaintiffs and one 3 Co-plaintiff, Marvin Harris, filed the Complaint commencing this action. (ECF No. 1.) On July 4 26, 2022, Co-plaintiff Marvin Harris was dismissed from this case for his failure to obey a court 5 order. (ECF No. 12.) As a result, Plaintiffs Kennedy Robinson and Adam E. are now the only 6 Plaintiffs in this case. Neither of the Plaintiffs has paid the filing fee for this action, or submitted 7 an application to proceed in forma pauperis. 8 II. SEVERANCE OF CLAIMS 9 After reviewing the Complaint, the Court has determined that each Plaintiff should 10 proceed separately on his own claims. Rule 21 of the Federal Rules of Civil Procedure provides 11 that “[o]n motion or on its own, the court may at any time, on just terms, add or drop a party . . . 12 [or] sever any claim against a party.” Fed. R. Civ. P. 21. Courts have broad discretion regarding 13 severance. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1297 (9th Cir. 2000); Maddox v. 14 County of Sacramento, No. 2:06-cv-0072-GEB-EFB, 2006 WL 3201078, *2 (E.D.Cal. Nov. 6, 15 2006). 16 In the Court’s experience an action brought by multiple plaintiffs proceeding pro se in 17 which one or more of the plaintiffs are incarcerated presents procedural problems that cause delay 18 and confusion. Delay often arises from the frequent transfer of inmates to other facilities or 19 institutions, the changes in address that occur when inmates are released on parole, and the 20 difficulties faced by inmates who attempt to communicate with each other and other 21 unincarcerated individuals. Further, the need for all plaintiffs to agree on all filings made in this 22 action, and the need for all filings to contain the original signatures of all plaintiffs will lead to 23 delay and confusion. Therefore, Plaintiffs’ claims are ordered to be severed. Plaintiff Kennedy 24 Robinson shall proceed as the sole plaintiff in this case, and a new case shall be opened for 25 Plaintiff Adam E.. Gaffney v. Riverboat Serv. of Indiana, 451 F.3d 424, 441 (7th Cir. 2006). 26 Each Plaintiff shall be solely responsible for prosecuting his own separate case. 27 Since the claims of the Plaintiffs will be severed, each of the Plaintiffs shall be given 28 thirty days to file, in his own action, an amended complaint. Under Rule 15(a) of the Federal 1 Rules of Civil Procedure, leave to amend “shall be freely given when justice so requires.” 2 Plaintiffs must each demonstrate in their individual amended complaints how the conditions 3 complained of resulted in a deprivation of their constitutional rights. See Ellis v. Cassidy, 625 4 F.2d 227 (9th Cir. 1980). Each Plaintiff must set forth “sufficient factual matter . . . to ‘state a 5 claim that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. 6 Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)); Moss v. U.S. Secret Service, 7 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this 8 plausibility standard. Iqbal, 556 U.S. at 679; Moss, 572 F.3d at 969. Each amended complaint 9 must specifically state how each named Defendant is involved. Each Plaintiff must demonstrate 10 that each Defendant personally participated in the deprivation of his own rights. Jones, 297 F.3d 11 at 934 (emphasis added). 12 Each of the Plaintiffs’ First Amended Complaints may not exceed 25 pages, 13 including the pages in the form complaint and any exhibits. If typewritten, the First 14 Amended Complaints must be double-spaced. Under federal notice pleading, a complaint is 15 required to contain “a short and plain statement of the claim showing that the pleader is entitled 16 to relief . . . .” Fed. R. Civ. P. 8(a)(2). “Such a statement must simply give defendant fair notice 17 of what the plaintiff’s claim is and the grounds upon which it rests.” Id. The federal rules 18 contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 19 2002) (noting that “nearly all of the circuits have now disapproved any heightened pleading 20 standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 84; cf. Rule 9(b) 21 (setting forth rare exceptions to simplified pleading). 22 The original Complaint in this case is 39 pages long. Rule 8(a) requires a plaintiff to set 23 forth his or her claims in short and plain terms, simply, concisely, and directly. See Swierkiewicz 24 v. Sorems N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading 25 system, which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. The 26 Court (and each defendant) should be able to read and understand Plaintiff’s pleading within 27 minutes. McHenry v. Renne, 84 F.3d 1172, 1179–80 (9th Cir. 1996). 28 1 The original Complaint for this action fails to comport with Rule 8(a)’s requirement for 2 “a short and plain statement of the claim showing that the pleader is entitled to relief.” The 3 lengthy narrative in the original Complaint does not clearly or succinctly allege facts against the 4 named defendants. Twenty-five pages, including the pages in the form complaint and any 5 exhibits, is more than sufficient for each Plaintiff to identify his claims and set forth specific 6 facts in support of those claims. Furthermore, if typewritten, the First Amended Complaint 7 must be double-spaced. 8 With respect to exhibits, while they are permissible, Fed. R. Civ. P. 10
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2 3
8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
11 MARVIN HARRIS, et al., 1:21-cv-01452-DAD-GSA-PC
12 ORDER SEVERING PLAINTIFFS’ Plaintiff, CLAIMS AND DIRECTING CLERK’S 13 OFFICE TO OPEN NEW CASE FOR vs. PLAINTIFF ADAM E. 14 CURRY, et al., THIRTY-DAY DEADLINE FOR 15 PLAINTIFFS KENNEDY ROBINSON AND Defendants. ADAM E. TO EACH FILE AN AMENDED 16 COMPLAINT NOT EXCEEDING 25 PAGES TOTAL IN THEIR 17 SEPARATE/INDIVIDUAL CASES
18 THIRTY-DAY DEADLINE FOR PLAINTIFFS KENNEDY ROBINSON AND 19 ADAM E. TO EACH SUBMIT AN APPLICATION TO PROCEED IN FORMA 20 PAUPERIS, OR PAY THE $402.00 FILING FEE, IN THEIR SEPARATE/INDIVIDUAL 21 CASES
22 ORDER FOR CLERK TO REFLECT ON THE COURT’S DOCKET THAT 23 PLAINTIFF ADAM E. HAS BEEN TERMINATED FROM THIS CASE 24
26 27 I. BACKGROUND 28 1 Kennedy Robinson and Adam E. (“Plaintiffs”) are state prisoners proceeding pro se with 2 this civil rights action pursuant to 42 U.S.C. § 1983. On September 29, 2021, Plaintiffs and one 3 Co-plaintiff, Marvin Harris, filed the Complaint commencing this action. (ECF No. 1.) On July 4 26, 2022, Co-plaintiff Marvin Harris was dismissed from this case for his failure to obey a court 5 order. (ECF No. 12.) As a result, Plaintiffs Kennedy Robinson and Adam E. are now the only 6 Plaintiffs in this case. Neither of the Plaintiffs has paid the filing fee for this action, or submitted 7 an application to proceed in forma pauperis. 8 II. SEVERANCE OF CLAIMS 9 After reviewing the Complaint, the Court has determined that each Plaintiff should 10 proceed separately on his own claims. Rule 21 of the Federal Rules of Civil Procedure provides 11 that “[o]n motion or on its own, the court may at any time, on just terms, add or drop a party . . . 12 [or] sever any claim against a party.” Fed. R. Civ. P. 21. Courts have broad discretion regarding 13 severance. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1297 (9th Cir. 2000); Maddox v. 14 County of Sacramento, No. 2:06-cv-0072-GEB-EFB, 2006 WL 3201078, *2 (E.D.Cal. Nov. 6, 15 2006). 16 In the Court’s experience an action brought by multiple plaintiffs proceeding pro se in 17 which one or more of the plaintiffs are incarcerated presents procedural problems that cause delay 18 and confusion. Delay often arises from the frequent transfer of inmates to other facilities or 19 institutions, the changes in address that occur when inmates are released on parole, and the 20 difficulties faced by inmates who attempt to communicate with each other and other 21 unincarcerated individuals. Further, the need for all plaintiffs to agree on all filings made in this 22 action, and the need for all filings to contain the original signatures of all plaintiffs will lead to 23 delay and confusion. Therefore, Plaintiffs’ claims are ordered to be severed. Plaintiff Kennedy 24 Robinson shall proceed as the sole plaintiff in this case, and a new case shall be opened for 25 Plaintiff Adam E.. Gaffney v. Riverboat Serv. of Indiana, 451 F.3d 424, 441 (7th Cir. 2006). 26 Each Plaintiff shall be solely responsible for prosecuting his own separate case. 27 Since the claims of the Plaintiffs will be severed, each of the Plaintiffs shall be given 28 thirty days to file, in his own action, an amended complaint. Under Rule 15(a) of the Federal 1 Rules of Civil Procedure, leave to amend “shall be freely given when justice so requires.” 2 Plaintiffs must each demonstrate in their individual amended complaints how the conditions 3 complained of resulted in a deprivation of their constitutional rights. See Ellis v. Cassidy, 625 4 F.2d 227 (9th Cir. 1980). Each Plaintiff must set forth “sufficient factual matter . . . to ‘state a 5 claim that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. 6 Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)); Moss v. U.S. Secret Service, 7 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this 8 plausibility standard. Iqbal, 556 U.S. at 679; Moss, 572 F.3d at 969. Each amended complaint 9 must specifically state how each named Defendant is involved. Each Plaintiff must demonstrate 10 that each Defendant personally participated in the deprivation of his own rights. Jones, 297 F.3d 11 at 934 (emphasis added). 12 Each of the Plaintiffs’ First Amended Complaints may not exceed 25 pages, 13 including the pages in the form complaint and any exhibits. If typewritten, the First 14 Amended Complaints must be double-spaced. Under federal notice pleading, a complaint is 15 required to contain “a short and plain statement of the claim showing that the pleader is entitled 16 to relief . . . .” Fed. R. Civ. P. 8(a)(2). “Such a statement must simply give defendant fair notice 17 of what the plaintiff’s claim is and the grounds upon which it rests.” Id. The federal rules 18 contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 19 2002) (noting that “nearly all of the circuits have now disapproved any heightened pleading 20 standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 84; cf. Rule 9(b) 21 (setting forth rare exceptions to simplified pleading). 22 The original Complaint in this case is 39 pages long. Rule 8(a) requires a plaintiff to set 23 forth his or her claims in short and plain terms, simply, concisely, and directly. See Swierkiewicz 24 v. Sorems N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading 25 system, which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. The 26 Court (and each defendant) should be able to read and understand Plaintiff’s pleading within 27 minutes. McHenry v. Renne, 84 F.3d 1172, 1179–80 (9th Cir. 1996). 28 1 The original Complaint for this action fails to comport with Rule 8(a)’s requirement for 2 “a short and plain statement of the claim showing that the pleader is entitled to relief.” The 3 lengthy narrative in the original Complaint does not clearly or succinctly allege facts against the 4 named defendants. Twenty-five pages, including the pages in the form complaint and any 5 exhibits, is more than sufficient for each Plaintiff to identify his claims and set forth specific 6 facts in support of those claims. Furthermore, if typewritten, the First Amended Complaint 7 must be double-spaced. 8 With respect to exhibits, while they are permissible, Fed. R. Civ. P. 10(c), they are not 9 necessary in the federal system of notice pleading, Fed. R. Civ. P. 8(a). The Court strongly 10 suggests to Plaintiffs that they should not be submitted where (1) they serve only to confuse the 11 record and burden the Court, or (2) they are intended as future evidence. If Plaintiffs’ cases reach 12 a juncture at which the submission of evidence is appropriate and necessary (e.g., summary 13 judgment or trial), they will have the opportunity at that time to submit their evidence. 14 Plaintiffs Kennedy Robinson and Adam E. shall each be required to either submit an 15 application to proceed in forma pauperis, or pay the $402.00 filing fee for his own case, within 16 thirty days. 17 Plaintiffs should note that although they have been given the opportunity to amend, it is 18 not for the purpose of adding new defendants for unrelated claims. In addition, Plaintiffs have 19 not been granted leave to include allegations of events occurring after the initiation of this suit 20 on September 29, 2021. 21 Finally, Plaintiffs are advised that Local Rule 220 requires that an amended complaint be 22 complete in itself without reference to any prior pleading. As a general rule, an amended 23 complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). 24 Once an amended complaint is filed, the original complaint no longer serves any function in the 25 case. Therefore, in an amended complaint, as in an original complaint, each claim and the 26 involvement of each defendant must be sufficiently alleged. Each amended complaint should be 27 clearly and boldly titled “First Amended Complaint,” refer to the appropriate case number, and 28 be an original signed under penalty of perjury. 1 III. CONCLUSION AND ORDER 2 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 3 1. Plaintiff Kennedy Robinson shall proceed as the sole plaintiff in this case, number 4 1:21-cv-01452-DAD-GSA-PC; 5 2. The claims of Plaintiff Adam E. are severed from the claims of Plaintiff Kennedy 6 Robinson; 7 3. The Clerk of Court is directed to: 8 a. Open a new § 1983 civil case for Plaintiff Adam E., Corcoran State Prison, 9 P.O. Box 3466, Corcoran, California 93212-3466; 10 b. Assign the new case to the Magistrate Judge to whom the instant case is 11 assigned and make appropriate adjustment in the assignment of civil cases 12 to compensate for such assignment; 13 c. File and docket a copy of this order in the new case opened for Plaintiff 14 Adam E.; 15 d. Place a copy of the original Complaint (ECF No. 1), which was filed on 16 September 29, 2021, in the new case opened for Plaintiff Adam E.; 17 e. Send Plaintiff Adam E. an endorsed copy of the original Complaint (ECF 18 No. 1), filed on September 29, 2021, bearing the case number assigned to 19 his own individual case; 20 f. Send each Plaintiff, Kennedy Robinson and Adam E., a § 1983 civil rights 21 complaint form; and 22 g. Send each Plaintiff, Kennedy Robinson and Adam E., an application to 23 proceed in forma pauperis. 24 6. Within thirty (30) days from the date of service of this order, Plaintiffs Kennedy 25 Robinson and Adam E. shall each file an amended complaint bearing their own 26 case numbers; 27 7. Each amended complaint should be clearly and boldly titled “First Amended 28 Complaint” and be an original signed under penalty of perjury; 1 8. Within thirty (30) days of the date of service of this order, Plaintiffs Kennedy 2 Robinson and Adam E. shall each submit an application to proceed in forma 3 pauperis, or payment of the $402.00 filing fee, in their own cases; and 4 9. The failure to comply with this order will result in a recommendation that the 5 action be dismissed. 6 IT IS SO ORDERED. 7
8 Dated: July 27, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 9
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