Nelsonv.Francis

United States District Court, N.D. Texas, Amarillo DivisionJul 29, 2003
2:02-CV-0347 (N.D. Tex. Jul. 29, 2003)

2:02-CV-0347

July 29, 2003


ORDER TO SEVER CLAIMS


CLINTON E. AVERITTE, Magistrate Judge

Plaintiff CHARLES F. NELSON, acting pro se and while a prisoner confined in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants and has been granted permission to proceed in forma pauperis.

By his original complaint, plaintiff complains of the acts or omissions of various officials, or members of the staff of those officials, which acts or omissions plaintiff feels violated his due process rights or his right of access to the courts with respect to various cases. Plaintiff requests unspecified monetary and injunctive relief.

On April 23, 2003, the Court issued an Order to File Amended Complaint and Cure Pleading Deficiencies by which plaintiff was given until May 13, 2003, in which to file an Amended Complaint and allege the facts necessary to show all claims are properly joined or drop any clams not properly joined. Plaintiff was instructed that any improperly-joined claims will be severed into one or more new cause numbers, and plaintiff will be required to pay the filing fee(s) for each cause.

In spite of receiving a subsequent extension of the deadline to July 2, 2003, plaintiff still has not complied with the Order. Instead, on July 22, 2003, plaintiff submitted a pleading he entitled "Supplemental Complaint" and which he characterized as "just a sampling of the factual circumstances, and the broad and sweeping nature of the denials to materials essential to bringing any meaningful claims to the courts." Plaintiff clearly does not intend this pleading to constitute the required amended complaint as he also filed a July 22, 2003, motion for extension to file amended complaint. Consequently, the Court has reviewed both plaintiffs original complaint and his supplemental complaint.

In brief detail, plaintiff's claims are as follows: (1) defendants HAZELWOOD and JUDGE FRANCIS failed to respond to his requests for a transcript of his criminal trial and FRANCIS failed to recuse herself or rule on eleven motions plaintiff filed in his criminal case; (2) defendant GROOMER, Potter County District Clerk, or persons in her office, waited twenty-one days before filing plaintiffs civil rights lawsuit concerning an attack which occurred in the Dallas County Jail and defendant HAMLIN, Dallas County District Clerk, or persons in his office, did not timely file plaintiffs summary judgment response in the same case and failed to file various motions in plaintiffs unidentified state habeas case; (3) the Honorable JUDGE SANDOVAL held four hearings in a foreclosure case on plaintiffs house for which SANDOVAL did not issue writs of habeas corpus ad testificandum so plaintiff could attend and, further, failed to rule on various motions to compel which plaintiff filed; (4) defendant SHEA, Secretary of State, refused to give plaintiff information unless he paid in advance; (5) defendant GOVERNOR RICK PERRY did nothing to help plaintiff obtain express or two-day priority mail for use in his foreclosure suit despite plaintiffs notification to him; (6) defendant GARY JOHNSON, has not given plaintiff overnight mail, priority mail, or express mail services and did not prevent the unit law libraries from removing the printed Shepards Digests and replacing them with a centralized computer system which plaintiff says is ineffective andunsatisfactory (7) the ATTORNEY GENERAL OF TEXAS has issued an opinion that plaintiff feels adversely affects plaintiffs access to courts because, he says, it advises that state agencies do not have to respond to the requests of inmates; (8) the POSTAL SERVICE did not deliver various items of certified mail properly, failing to obtain the recipient's signature and losing three letters; (9) TROY C. BENNETT, the Clerk for the Court of Criminal Appeals, or a member of his staff, failed to respond to inquiries plaintiff made about a Mandamus action plaintiff mailed to that court on or about June 1, 2000 for eight months; and (10) TDCJ-ID has refused to give plaintiff the address of the woman convicted of murdering plaintiffs son so plaintiff can sue her. Concerning defendant the STATE OF TEXAS, plaintiff has made no allegations and simply included it on his list of defendants interleaved in his original complaint.

During this time, plaintiff took no steps to prepare his first federal habeas corpus because he felt he needed the mandamus relief first. Consequently, plaintiff says, his federal habeas was dismissed as barred by the statute of limitations.

Plaintiffs only attempt to tie these disparate claims together is to argue they all, ultimately and usuallyonly indirectly, adversely affected his access to the courts and, therefore, violated his right to due process.

Rule 18, Federal Rules of Civil Procedure, allows a plaintiff to join "either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the partyhas against an opposing party." Rule 20, Federal Rules of Civil Procedure, allows the joinder of several parties if the claims arose out of a single transaction and contain a question of fact or law common to all the defendants.

Plaintiffs claims do not share a common non-frivolous defendant and did not arise out of a single transaction. It is clear that plaintiff has alleged claims which properly should have been brought in separate lawsuits.

Under the new fee provisions of the Prison Litigation Reform Act of 1995 (PLRA), "a prisoner is not entitled to commence an action or file an appeal without prepayment in some form (§ 1915(b)(2)), a privilege afforded to nonprisoners under § 1915(a)(1)." Gay v. Texas Department of Corrections State Jail Div., 117 F.3d 240, 241 (5th Cir. 1997). This fee provision was designed to deter frivolous prisoner litigation by making all prisoner litigants feel the deterrent effect created by liability for filing fees. Williams v. Roberts, 116 F.3d 1126, 1127-28 (5th Cir. 1997).

The PLRA also contains a "three-strikes" provision requiring collection of the fee after the dismissal for frivolousness, etc., of three actions or appeals brought byprisoner proceeding in forma pauperis, unless the statutory exception is satisfied. Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996); 28 U.S.C. § 1915(g).

The Court is aware that, in the past, a prisoner plaintiff proceeding pro se and in forma pauperis has often been allowed to assert improperly-joined claims against defendants lacking any connection except that they were encountered during the plaintiffs incarceration. This was done for purposes of judicial economy and to avoid placing procedural barriers before the pro se litigant. However, in light of the provisions of the PLRA, to continue this practice would be to defeat, or at least greatly dilute, the clear intent of the fee payment provision of the statute and to allow prisoner litigants to circumvent the "three-strikes" provision.

For the reasons set forth above, the Court determines plaintiffs claims against defendants JIM HAMLIN; CINDY GROOMER; CHARLES SANDOVAL, Judge; GWYN SHEA; RICK PERRY, Governor; GARY JOHNSON; ATTORNEY GENERAL, State of Texas; U.S. POSTMASTER GENERAL; TROY BENNETT; and TDCJ-ID are improperly joined with his claims against the remaining defendants.

IT IS THEREFORE ORDERED that,

1. Plaintiffs claims against defendants JIM HAMLIN and CINDY GROOMER are hereby SEVERED from the instant cause and shall be pursued in a new cause opened by the Clerk, along with a copy file prepared for the Court, and styled as follows: CHARLES F. NELSON, Plaintiff, v. JIM HAMLIN and CINDY GROOMER, Defendants. In the file of the severed case, the Clerk shall place certified copies of all pleadings and orders from inception of this case to date, as well as a copy of the instant order.

2. Plaintiffs claims against defendant CHARLES SANDOVAL, Judge, are hereby SEVERED from the instant cause and shall be pursued in a new cause opened by the Clerk, along with a copy file prepared for the Court, and styled as follows: CHARLES F. NELSON, Plaintiff, v. CHARLES SANDOVAL, Judge, Defendant. In the file of the severed case, the Clerk shall place certified copies of all pleadings and orders from inception of this case to date, as well as a copy of the instant order.

3. Plaintiffs claims against defendants RICK PERRY, Governor, and GARY JOHNSON, are hereby SEVERED from the instant cause and shall be pursued in a new cause opened by the Clerk, along with a copy file prepared for the Court, and styled as follows: CHARLES F. NELSON, Plaintiff, v. RICK PERRY, Governor, and GARY JOHNSON, Defendants. In the file of the severed case, the Clerk shall place certified copies of all pleadings and orders from inception of this case to date, as well as a copy of the instant order.

4. Plaintiffs claims against defendants GWYN SHEA and ATTORNEY GENERAL, State of Texas, are hereby SEVERED from the instant cause and shall be pursued in a new cause opened by the Clerk, along with a copy file prepared for the Court, and styled as follows: CHARLES F. NELSON, Plaintiff, v. GWYN SHEA and ATTORNEY GENERAL, State of Texas, Defendants. In the file of the severed case, the Clerk shall place certified copies of all pleadings and orders from inception of this case to date, as well as a copy of the instant order.

5. Plaintiffs claims against defendant U.S. POSTMASTER GENERAL are hereby SEVERED from the instant cause and shall be pursued in a new cause opened by the Clerk, along with a copy file prepared for the Court, and styled as follows: CHARLES F. NELSON, Plaintiff, v. U.S. POSTMASTER GENERAL, Defendant. In the file of the severed case, the Clerk shall place certified copies of all pleadings and orders from inception of this case to date, as well as a copy of the instant order.

6. Plaintiffs claims against defendant TROY BENNETT are hereby SEVERED from the instant cause and shall be pursued in a new cause opened by the Clerk, along with a copy file prepared for the Court, and styled as follows: CHARLES F. NELSON, Plaintiff, v. TROY BENNETT, Defendant. In the file of the severed case, the Clerk shall place certified copies of all pleadings and orders from inception of this case to date, as well as a copy of the instant order.

7. Plaintiffs claims against defendant TDCJ-ID are hereby SEVERED from the instant cause and shall be pursued in a new cause opened by the Clerk, along with a copy file prepared for the Court, and styled as follows: CHARLES F. NELSON, Plaintiff, v. TDCJ-ID, Defendant. In the file of the severed case, the Clerk shall place certified copies of all pleadings and orders from inception of this case to date, as well as a copy of the instant order.

Plaintiff's claims against the remaining defendants shall be retained under the present cause number and shall be styled as follows: CHARLES F. NELSON, Plaintiff, v. MOLLY FRANCIS, Judge, SHARON HAZELWOOD, and THE STATE OF TEXAS, Defendants.

IT IS SO ORDERED.