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Bertolo v. Raemisch

United States District Court, D. Colorado

January 13, 2020

JAMES MICHAEL BERTOLO, Plaintiff,
v.
RICK RAEMISCH, RANDY LIND, MIKE ROMERO, LAURA SHAIN, LAURA BORREGO-GIBBS, KRISTY STANSELL, LEONARD WOODSON, CAROL TRUJILLO, SARA SWINGLE, MATHEW HANSON, CHRIS LOBANOV-ROSTOVSKY, CHARLES TAPPE, and RAE TIMMIE, Defendants.

          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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