United States District Court, D. Colorado
MICHAEL E. HEGARTY UNITED STATES MAGISTRATE JUDGE
case arises out of Plaintiff Luke Chrisco's incarceration
at San Carlos Correctional Facility, which is managed by the
Colorado Department of Corrections (“CDOC”).
Before this Court is Mr. Chrisco's “Motion for
Joinder of Co-Plaintiff Pursuant to F.R.C.P. 20(a)(1)(B) or
Other Rule, ” ECF No. 103. For the reasons that follow,
I deny the motion.
Chrisco is currently a prisoner in custody at the San Carlos
Correctional Facility. From July 2014 to April 2015, Mr.
Chrisco consistently filed grievances against CDOC unit
staff, supervisors, mental health staff, and the law library
employees. Am. Compl. ¶ 1, ECF No. 17. He claims the
staff retaliated against him for filing grievances, forced
him to take psychoactive medication, and obstructed his
access to the law library. Id. ¶¶ 1-5.
Chrisco first brought nineteen claims against seventeen
different Defendants. Am. Compl., ECF No. 17. Some of the
Defendants filed a motion to dismiss under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6), ECF No. 50. On August
13, 2018, this Court granted the motion in part and denied it
in part, reducing this lawsuit to eight claims against
fourteen defendants. Order, ECF No. 97. On September 11,
2018, Mr. Chrisco filed this motion to join George Wiggins as
a co-plaintiff. ECF No. 103. On the same day, Mr. Wiggins
filed a declaration and expressed a desire “to join in
each of the injunctive claims made herein and/or any appeal
herefrom.” Decl. of George Wiggins, Prospective Co-Pl.
¶ 4, ECF No. 104.
Court must construe Mr. Chrisco's and Mr. Wiggins's
filings liberally because they are not represented by an
attorney. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir.1991). However, the Court should not act as an advocate
for pro se litigants. Hall, 935 F.2d at
1110. Despite this liberal standard, I deny the motion for
seeking joinder of claimants under Rule 20 of the Federal
Rules of Civil Procedure must establish: 1) “any right
to relief jointly, severally, or in the alternative with
respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences”;
and 2) “any question of law or fact common to all
plaintiffs” seeking to be joined. Fed.R.Civ.P.
20(a)(1). When deciding whether to allow the permissive
joinder of a party, a court should consider the following
[T]he possible prejudice that may result to any of the
parties in the litigation, the delay of the moving party in
seeking an amendment to his pleadings, the motive that the
moving party has in seeking such amendment, the closeness of
the relationship between the new and the old parties, the
effect of an amendment on the court's jurisdiction, and
the new party's notice of the pending action.
MDM Grp. Assocs., Inc. v. Midgett Realty, Inc., No.
07-cv-02543-WDM-CBS, 2008 WL 2756926, *4 (D. Colo. July 14,
2008) (citing Desert Empire Bank v. Ins. Co. of N.
Am., 623 F.2d 1371, 1375 (9th Cir. 1980)); accord
Sims v. New, No. 08-cv-00794-CMA-MEH, 2009 WL 3234225,
at *20 (D. Colo. Sept. 30, 2009).
Chrisco has not satisfied either of the Rule 20 requirements.
First, neither he nor Mr. Wiggins mentions any transactions
or occurrences that create a right of relief associated with
the same question. See Fed. R. Civ. P. 20(a)(1)(A).
Mr. Wiggins only declares that he has “an interest in
the outcome of this case” because he is incarcerated in
the same facility as Mr. Chrisco. Decl. of George Wiggins,
¶ 1. Although Mr. Wiggins adds that he “agree[s]
with the positions propounded therein with regard to the
claims for injunctive relief, ” he fails to state why
his right to relief arises from the same transaction,
occurrence, or series of transactions or occurrences, as Mr.
Chrisco's injunctive relief. Id. ¶ 2.
Second, both Mr. Chrisco and Mr. Wiggins fail to allege a
common question of law or fact. See Fed. R. Civ. P.
20(a)(1)(B). Mr. Chrisco declares only that this “case
raises a number of claims which have a social importance and
which impact a large class of prisoners across the
country” and that “the issue of standing is of
paramount importance herein as this case proceeds in the
District Court and by any contemplated appeal to the Supreme
Court.” Mot. for Joinder ¶ 3. It appears that Mr.
Chrisco's intent to retain Mr. Wiggins as a co-plaintiff
is to secure standing while the case proceeds because Mr.
Chrisco “will likely lack standing to pursue the
injunctive claims for relief” when he is discharged.
Id. ¶ 2. This is an unusual theory for
permissive joinder, and it does not establish a common
question of law or fact.
permissive joinder was appropriate, this district court and
many other federal courts have found “pervasive
impracticalities associated with multi-plaintiff pro
se prisoner litigation that militate against permissive
joinder that would otherwise be allowed” by Rule
20(a)(1). See, e.g., Bertolo v.
Hickenlooper, No. 12-cv-01763-BNB, 2012 WL 3638828, at
*1 (D. Colo. Aug. 23, 2012) (citing Boretsky v.
Corzine, No. 08-2265-GEB, 2008 WL 2512916, at *5 (D.N.J.
June 23, 2008)); see also Galindo v. Pueblo Cty. 10th
Jud. Dist., No. 10-cv-02373-BNB, 2010 WL 5103036, at
*1-2 (D. Colo. Dec 9, 2010) (citing Boretsky);
Richardson v. Robinson, No. 10-cv-02558-BNB, 2010 WL
5014364, at *2-3 (D. Colo. Dec. 3, 2010) (same); Rueb v.
Zavaras, No. 10-cv-02725-BNB, 2010 WL 4860904, at *1-2
(D. Colo. Nov. 15, 2010) (same). Among several difficulties
noted by these courts is the “need for each plaintiff
to sign every pleading, and the consequent possibilities that
documents may be changed as they are circulated, or that
prisoners may seek to compel prison authorities to permit
them to gather to discuss the joint litigation.”
Bertolo, 2012 WL 3638828, at *1. Some
prisoners may forge other co-plaintiff's signatures or
attempt to act on their behalf even though only members of
the bar are allowed to litigate as agents. Id. This
is further compounded because “[f]or legitimate
security reasons, institutional rules may prohibit inmates
from corresponding within and among facilities, ...