United States District Court, D. Colorado
ORDER
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
This
matter is before the Court on the Recommendation of United
States Magistrate Judge Kristen L. Mix (ECF No. 224) to deny
Plaintiff James M. Bertolo (“Plaintiff”) and
Prospective Plaintiffs Russell Foreman, Melvin Fischer, and
Dennis Dunnan's (“Prospective Plaintiffs”)
“Motion for Leave with Permissive Joinder of Plaintiffs
Pursuant to F.R.C.P. Rule 12” (“Joinder
Motion”) (ECF No. 219), in which they moved to join
Prospective Plaintiffs to Claim 52 (ECF No. 219). Plaintiff
filed an Objection (ECF No. 225).[1] Defendants did not respond
to Plaintiff's Objection and the time to do so provided
by Fed.R.Civ.P. 72(b)(2) has passed. For the reasons below,
the Court overrules Plaintiff's Objection, accepts the
Magistrate Judge's Recommendation in its entirety, and
denies the Joinder Motion.
I.
BACKGROUND
In
adopting the Magistrate Judge's Recommendation, the Court
adopts and incorporates the Magistrate Judge's background
section, to which no party objects, and reiterates the main
points here. Plaintiff and Prospective Plaintiffs are
currently incarcerated at the Sterling Correctional Facility
and proceed pro se in this matter. (ECF No. 216, at
6-8.) Prospective Plaintiffs, through their Joinder Motion,
seek to join in Claim 52 - the claim containing allegations
that Defendants “engaged in discrimination by
‘failing or refusing to provide compliant
accommodations and medical restrictions' for Plaintiff
and Prospective Plaintiffs' ‘mobility
impairments' pursuant to the Americans with Disabilities
Act (the “ADA”) and the ‘504 Rehabilitation
Act' (the “Rehabilitation Act”).” (ECF
No. 224 (quoting ECF No. 56).)
This is
not the first time Plaintiff has attempted to join additional
plaintiffs to this lawsuit; he has tried on three separate
occasions. See Order Denying Permissive Joinder,
Dismissing Plaintiffs Other than James Michael Bertolo, and
Directing Bertolo to Cure Deficiencies (ECF No. 21, at
3-5); Order (ECF No. 190, at 6); Order (ECF
No. 210, at 1-2). On each previous occasion, however,
Plaintiff failed to provide specific factual
allegations that showed why a Rule 20 joinder was proper and
adequately address issues related to multi-plaintiff prisoner
litigation. See Recommendation (ECF No. 224, at 3).
See also Order (ECF No. 190, at 6); Order
(ECF No. 210, at 2).
Plaintiff's
proposed “5th Amended Complaint With Claim
52 With Jury Demand Pursuant To F.R.C.P. Rule 12/56”
(ECF No. 219) (“Proposed Fifth Amended
Complaint”) - attached to the Joinder Motion - contains
“ten different claims against eighteen different
defendants, some of whom were not named in any previous
complaint, ” and sought to join the Prospective
Plaintiffs to Claim 52 only. Joinder Motion (ECF No.
219, at 8-12); see also (ECF Nos. 1, 61, 76, 137).
Defendants responded arguing Plaintiff failed to cure any of
the deficiencies identified in Plaintiff's previous
attempts to join additional plaintiffs. Response to
Motion for Leave with Permissive Joinder of Plaintiffs
(“Response”) (ECF No. 222). Plaintiff and
Prospective Plaintiffs replied arguing the Joinder Motion
should not be denied on purely procedural grounds. (ECF No.
223.)
The
Magistrate Judge recommended denying the Joinder Motion on
two grounds. First, because there remain deficiencies in
specific factual allegations, including those related to the
conditions to which Plaintiff and Prospective Plaintiffs are
subject, that relate to all plaintiffs. (ECF No. 224, at
5-8.) The Magistrate Judge also recommended denying the
Joinder Motion because the court still had concerns related
to the practicalities of multi-plaintiff prison litigation.
(ECF No. 224, at 9-12.)
Plaintiff
objects to the Magistrate Judge's Recommendation,
generally arguing that even if the Court denied the Joinder
Motion it should not deny his attempt to amend his Fourth
Amended Complaint. Objection (ECF No. 225).
To
clear up any confusion, the primary issue addressed in the
Joinder Motion is the proposed amendment to add Prospective
Plaintiffs to Claim 52. For example, the opening line of the
Joinder Motion provides that Plaintiff and Prospective
Plaintiffs “motion for leave as directed by [the
Magistrate Judge] to amend plaintiff(s) complaint with a
permissive joinder to claim 52 for which they each
individually seek joint relief pursuant to F.R.C.P.
20.” (ECF No. 219, at 1 (emphasis added).) In other
words, it becomes clear that the amendment was sought with
one goal in mind - Rule 20 joinder of Prospective Plaintiffs
to Claim 52. The focus of the Magistrate Judge's
attention was therefore directed toward Claim 52 and the
issues of joinder. As an afterthought, Plaintiff moved for
leave to amend the complaint once more, regardless of whether
joinder was granted, without more than this mere statement:
“Plaintiff(s) insist regardless of the joinder to
[P]laintiff Bertolo's 5th [A]mended
[C]omplaint[, ] [P]laintiff(s) believe it should be accepted
at least for [P]laintiff Bertolo, as the [R]espondents have
argued that many issues appear to be difficult to follow,
justifying [P]laintiff['s] position to correct any
spelling errors, and provide more definite statements of
facts since the court directed [P]laintiff(s) to amend where
considerable time and merit-able claims should be allowed to
evolve through the litigation process which will no less
prevent a manifest injustice.”
(ECF No. 219, at 6.) In light of Plaintiff's cursory
justification for leave to file another amended complaint,
the Recommendation focuses solely on the issue of permissive
joinder as it pertains to Claim 52 and Prospective
Plaintiffs:
“Here, the Court determines whether Plaintiff and
Prospective Plaintiffs' Proposed Fifth Amended Complaint
[(ECF No. 219)]: (1) provides specific factual allegations
demonstrating that joinder should be permitted pursuant to
Fed.R.Civ.P. 20(a)(1); and (2) adequately addresses
previously-identified issued concerning multiple-plaintiff
prisoner litigation. The Court need only consider Claim
52 for purposes of this Recommendation, because it is the
only claim in which Plaintiff seeks to join additional
parties as [p]laintiffs to the case.”
(ECF No. 224, at 3 (emphasis added).)
II.
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