United States District Court, D. Montana, Helena Division
L. Christensen, Chief Judge United States District Court
August 26, 2019 United States Magistrate Judge John T.
Johnston entered his Order and Findings and Recommendations
recommending that certain claims of inmate Chad Eric
Bjork's Amended Complaint be dismissed under Federal Rule
of Civil Procedure 20(a)(2). (Doc. 32.) Bjork timely objects
and so is entitled to de novo review of those findings to
which he specifically objects. 28 U.S.C. § 636(b)(1)(C).
This Court reviews for clear error those findings to which no
party objects. United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003); Thomas v. Arn, 474
U.S. 140, 149 (1985). Clear error exists if the Court is left
with a "definite and firm conviction that a mistake has
been committed." United States v. Syrax, 235
F.3d 422, 427 (9th Cir. 2000) (citations omitted).
December 13, 2018 Bjork filed his original Complaint (Doc. 2)
and shortly thereafter filed a preliminary injunction and
temporary restraining order (Doc. 4). On April 8, 2019 Judge
Johnston screened Bjork's Complaint, determined it was
nonfrivolous, and ordered Christine Slaughter, Tom Bolton,
Sam Jovanovich, and Randall Jones to respond to Bjork's
allegations. (Doc. 10.) Generally, the Complaint alleged
that: (1) Jones used excessive force and retaliated against
Bjork; Bolton conducted an unreasonable strip search; (3)
Jovanovich acquiesced in both of these incidents and further
retaliated against Bjork; and (4) that Slaughter retaliated
against Bjork for requesting accommodation under the
Americans with Disabilities Act in a disciplinary hearing.
(Doc. 2.) On June 6, 2019, Defendants answered the Complaint.
(Doc. 14.) Then, on July 22, 2019 Bjork filed an Amended
Complaint seeking to add 16 additional defendants and 17
additional claims. (Doc. 22.) Judge Johnston determined that
the lion's share of these claims were factually unrelated
and asserted against new defendants, and therefore
inappropriately joined in this lawsuit. (Doc. 32 at 1.)
However, the Magistrate Judge recommended that the claims
against Defendants Rees, Stray and Cobban proceed and ordered
those defendants to respond to the Amended Complaint.
joinder of parties is governed by Federal Rule of Civil
Procedure 20. The rule provides that defendants may be joined
in one action if: "(1) a right to relief [is] asserted
by, or against, each plaintiff or defendant relating to or
arising out of the same transaction or occurrence; and (2)
some question of law or fact common to all the parties will
arise in the action." League to Save Lake Tahoe v.
Tahoe Reg'l Planning Agency, 558 F.2d 914, 917 (9th
Cir. 1977). Even when the requirements for permissive joinder
are met, a court may exercise discretion to deny joinder to
avoid prejudice, delay, ensure judicial economy, and
safeguard principles of fairness. Seely v. Baca, No.
315CV00118MMDVPC, 2016 WL 829915, at *1 (D. Nev. Mar. 1,
2016); Coleman v. Quaker Oats Co., 232 F.3d 1271,
1296 (9th Cir. 2000).
comes to claims brought under the Prison Litigation Reform
Act ("PLRA"), joinder is scrutinized more carefully
in order not to frustrate the filing fee requirements.
See Seely, 2016 WL 829915, at *2; Hubbard v.
Haley, 262 F.3d 1194, 1197-98 (11th Cir. 2001).
Johnston determined that most of Bjork's new claims
raised in the Amended Complaint ought to be dismissed as
failing to meet Rule 20's requirements. The Magistrate
Judge determined that many of the newly added claims involved
separate factual scenarios, different legal theories,
occurred at separate times, and/or were asserted against
different defendants. (See Doc. 32 at 4-6.) Bjork
now attempts to overcome this challenge, by alleging that all
claims are related because they are all part of an
institutional "campaign of harassment." (Doc. 35 at
1.) This is not the sort of specific objection that is
entitled to de novo review. The Court will review for clear
though claims asserted by pro se litigants are entitled to
greater leniency, Erickson v. Pardus, 551 U.S. 89,
94 (2007), Bjork fails to allege facts sufficient to support
this theory. For example, he does not allege that any of the
defendants were motivated or inspired to cause him harm
because they saw one another doing so. He does not allege any
conspiracy or shared purpose that caused each participant to
act towards a broader objective to harm him. In short, the
Amended Complaint does nothing more than cite a series of
individual instances accompanied by the conclusion that these
defendants "acted in concert" towards a
"campaign of harassment." (Doc. 35 at 3.) Joining
each of these defendants together in a single action is
improper under Rule 20 and would circumvent the requirements
of the PLRA.
Bjork specifically objects to the dismissal of the claims
against Karen Peterson, Den Lemon, Mike Fletcher, Michele
(Shelly) Steyh, and Sergeant Machler. The Court will review
these claims de novo.
asserts that Peterson and Slaughter acted in concert to deny
Plaintiff his due process rights at a disciplinary hearing.
(Doc. 35 at 1.) The Complaint alleges that Slaughter
retaliated against Bjork for requesting disability
accommodation by finding him guilty of disciplinary
violations on this basis. (Doc. 2 at 13.) The Complaint does
not go into much detail on how or when this occurred. The
Amended Complaint alleges that Peterson searched Bjork's
legal filings and took portions of his legal mail and then
wrote him up for a disciplinary infraction. (Doc. 22 at 22.)
Bjork seems to allege that the disciplinary infraction was a
result of Bjork exercising his constitutional right to access
the courts. Even if the Court assumes that that the
disciplinary violation filed by Peterson was the same
violation that Slaughter determined Bjork was guilty of,
there is not a sufficient factual nexus to properly join
Peterson in this matter. Bjork has not alleged anything to
show that the women were "in concert" with one
another, for example, that Slaughter asked Peterson to file a
grievance against Bjork in order to punish him or that
Peterson was a part of that adjudication process. Peterson
will not be joined.
Amended Complaint alleges that Den Lemon caused damage to
Bjork's inner ear when he intentionally blasted a
crackling and popping noise over the intercom in Bjork's
unit for sadistic and malicious pleasure. (Doc. 19 at 44.)
Bjork subsequently filed a grievance against Lemon and was
then subjected to verbal harassment from Lemon for doing so.
(Id.) In his objections, Bjork argues that this act
was taken as part of the "campaign of harassment"
involving Slaughter and Rees. (Doc. 35 at 2.) There is no
indication from the Amended Complaint that this incident with
Bjork's ear resulted in any disciplinary action taken
against him. Thus, there are no facts or legal theories that
involve Slaughter. Furthermore, the Amended Complaint does
not allege a retaliation claim against Rees. Bjork accuses
Rees of denial of medical care for failing to treat many of
his ailments, including his ear. Bjork's claim against
Rees arises ...