(PC) Montecastro v. Newsome ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HENDRIX M. MONTECASTRO, et al. Case No. 1:19-cv-01065-BAM (PC) 12 Plaintiffs, ORDER TO SEVER ACTION 13 v. ORDER TO SUBMIT APPLICATIONS TO PROCEED IN FORMA PAUPERIS OR PAY 14 NEWSOME, et al., FILING FEE 15 Defendants. FORTY-FIVE (45) DAY DEADLINE 16 17 Plaintiffs Hendrix M. Montecastro and Paul Adams (“Plaintiffs”) are state prisoners 18 proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. 19 The court has determined that each plaintiff should proceed separately on his own claim. 20 The Federal Rules of Civil Procedure provide that “[o]n motion or on its own, the court may at 21 any time, on just terms, add or drop a party. The court may also sever any claim against a party.” 22 Fed. R. Civ. P. 21. Courts have broad discretion regarding severance. See Davis v. Mason Cty., 23 927 F.2d 1473, 1479 (9th Cir. 1991). 24 In the instant action, Plaintiffs are individuals in the custody of the California Department 25 of Corrections and Rehabilitation, presently confined at California Correctional Institution in 26 Tehachapi, California. In this court’s experience, an action brought by multiple inmate plaintiffs 27 proceeding pro se presents procedural problems that cause delay and confusion. Delay often 28 arises from the frequent transfer of inmates to other facilities or institutions, the changes in 1 address that occur when inmates are released to parole, and the difficulties faced by inmates who 2 attempt to communicate with each other and with unincarcerated individuals. 3 Accordingly, the Court will order that Plaintiffs’ claims be severed. Plaintiff Hendrix M. 4 Montecastro will proceed in this action, while Plaintiff Paul Adams will proceed in a separate 5 civil action to be opened by the Clerk of the Court. Each plaintiff will proceed with his own 6 action and will be solely responsible for his own action. 7 The Clerk of the Court will be directed to assign the new actions to the same Magistrate 8 Judge assigned to the instant action. The Clerk of the Court shall make appropriate adjustment in 9 the assignment of civil cases to compensate for this reassignment. 10 Neither plaintiff has paid the $400.00 filing fee or submitted an application to proceed in 11 forma pauperis pursuant to 28 U.S.C. § 1915. 12 Based on the foregoing, IT IS HEREBY ORDERED as follows: 13 1. The claims of Plaintiff Paul Adams are severed from the claims of Plaintiff Hendrix M. 14 Montecastro; 15 2. Plaintiff Hendrix M. Montecastro shall proceed as the sole plaintiff in this case; 16 3. The Clerk of the Court is directed to: 17 a. Open a separate civil action for Plaintiff Paul Adams; 18 b. Assign the new civil action to the magistrate judge to whom the instant case is 19 assigned and make appropriate adjustment in the assignment of civil cases to 20 compensate for such assignment; 21 c. File and docket a copy of this order in the instant action and the new civil action 22 opened for Plaintiff Paul Adams; 23 d. Place a copy of the complaint filed August 2, 2019 in the new civil action opened 24 for Plaintiff Paul Adams; 25 e. Send Plaintiff Paul Adams an endorsed copy of his complaint bearing the new case 26 number assigned to his individual action; 27 4. Within forty-five (45) days of the date of service of this order, each plaintiff shall submit 28 the attached application to proceed in forma pauperis, completed and signed, or in the 1 alternative, pay the $400.00 filing fee for his individual action. Each plaintiff’s 2 application must bear the docket number assigned to his own individual case; and 3 5. No requests for extension of time will be granted without a showing of good cause. A 4 plaintiff’s failure to comply with this order will result in dismissal of that plaintiff’s 5 individual action. 6 IT IS SO ORDERED. 7 8 Dated: August 13, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28