United States District Court, E.D. Kentucky, Northern Division
MEMORANDUM OPINION AND ORDER
WILLIAM O.BERTELSMAN UNITED STATE DISTRICT JUDGE.
Richard McBee is a pretrial detainee confined at the Campbell
County Detention Center (“CCDC”) in Newport,
Kentucky. McBee was arrested in Newport, Kentucky on January
10, 2016, and was charged with First Degree Robbery in
violation of Ky. Rev. Stat. 515.020. In March 2016, following
confirmation that he had previously committed state and
federal crimes, McBee was charged with being a First Degree
Persistent Felony Offender in violation of Ky. Rev. Stat.
532.080(3). He is currently representing himself in that case
(with standby counsel) and is scheduled for trial on these
charges on July 18, 2017. Commonwealth v. McBee, No.
16-CR-158 (Campbell Cir. Ct. 2016).
has filed a pro se civil rights complaint in this
Court asserting over a dozen claims that are loosely related
to the ongoing criminal prosecution against him and to the
conditions of his confinement at CCDC. [R. 1] After the Court
granted his motion to proceed in forma pauperis [R.
11], McBee filed his First Amended Complaint [R. 14]. He has
also recently filed a motion to appoint counsel, two motions
for injunctive relief, and a motion to file a second amended
complaint [R. 16, 17, 18, 19].
Motion to Appoint Counsel.
motion to appoint counsel, McBee indicates that he lacks the
legal training and resources to prosecute his claims and that
he cannot afford to hire an attorney. [R. 16] 28 U.S.C.
§ 1915(e)(1) authorizes a federal court to appoint
counsel to represent a pro se party in civil
litigation, but only in truly exceptional circumstances.
Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir.
2003). When considering whether to grant such a request, the
court considers the complexity of the case, the movant's
likelihood of success on the merits of the claim, and the
ability of the plaintiff to represent himself competently.
Cleary v. Mukaskey, 307 F. App'x 963, 965 (6th
Cir. 2009). In this case, the claims asserted by McBee are
not unduly complex, the substance of McBee's claims are
of doubtful viability, and McBee has adequately presented the
claims in his complaint. The Court has considered the
Lanier factors and concludes that this case does not
present the kind of extraordinary circumstances which would
warrant the appointment of counsel for the plaintiff, and the
Court will deny the motion.
Motion to Amend the Complaint.
McBee has been granted permission to proceed in forma
pauperis and because he asserts claims against
government officials, the Court must conduct a preliminary
review of his complaint. 28 U.S.C. §§ 1915(e)(2),
1915A. However, before engaging in a substantive screening of
the complaint, the Court must determine what claims are to be
screened. First, McBee was entitled to amend his complaint
once as a matter of course, Federal Rule of Civil Procedure
15(a)(1), and the Court therefore reviews his First Amended
Complaint [R. 14]. On December 4, 2016, McBee filed a motion
requesting two weeks to file a second amended complaint [R.
that time period has long since come and gone, and McBee has
taken no further action to amend his complaint. The motion
will therefore be denied as moot, and the First Amended
Complaint [R. 14] will remain the operative pleading in this
Severance of Unrelated Claims.
preliminary review of the disparate claims asserted by McBee
establishes that they do not belong together in a single
complaint. McBee's First Amended Complaint names ten
defendants: Campbell County Circuit Court Judge Julie
Reinhardt-Ward, Commonwealth's Attorney Michelle
Snodgrass-Deimlin, Directing Attorney of the Kentucky
Department of Public Advocacy Eva Hager, CCDC Jailer James
Daley, CCDC Lt. Col. Marc Brandt, CCDC Major Nagel, CCDC Lt.
Warfield, CCDC Lt. Fletcher, CCDC Sgt. Lohr, and Southern
Health Partners, Inc. McBee's complaint sets forth
thirteen numbered claims, although these “claims”
consist of a variety of factual allegations, each of which
McBee contends violate numerous constitutional rights.
McBee's complaint alleges that various defendants have
(1) confiscated his legal materials on three occasions, (2)
provided an inadequate law library, (3) provided him with
only limited access to Westlaw, (4) do not provide him with
Kosher meals, (5) charge more than face value for postage
stamps, (6) failed to provide him with adequate medical care
for his injuries shortly after his arrest, (7) used excessive
force after his arrest, (8, 11) failed to provide him with
hormone therapy and prescribed medications, and failed to
provide him with appointments with a psychologist or
psychiatrist, (9) require him to shave with a dull razor and
without shaving cream, (10) not provided him with new
prescription eyeglasses, (12) placed him in a single cell
with insufficient sunlight, ventilation, heat and limited or
no access to a shower, radio, television, telephones, books,
newspapers, and legal materials, do not adequately monitor
the jail, do not require that as a transgender woman he be
supervised by female staff members, do not adequately spray
insecticide for insects and spiders, do not have established
and consistently-followed jail procedures and grievance
policies, and (13) failed to provide him with access to his
original case file for his criminal proceedings.
joinder of multiple claims is governed by Rule 18 of the
Federal Rules of Civil Procedure. Rule 18(a) states that
“[a] party asserting a claim, counterclaim, crossclaim,
or third-party claim may join, as independent or alternative
claims, as many claims as it has against an opposing
party.” Where, as here, a plaintiff attempts to join
claims against multiple defendants, Rule 20(a) provides the
(2) Persons … may be joined in one action as
(A) any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising
out of the same transaction, occurrence, or series of
transactions or occurrences; and
(B) any question of law or fact common to all defendants will
arise in the action.
Civ. P. 20(a)(2). Rule 20(a)(2) establishes that a defendant
cannot be joined in an action if the claims asserted against
him or her do not arise from the same event or course of
events or which do not share common factual grounds or legal
bases with the claims asserted against the other defendants.
Wilson v. Bruce, 400 F. App'x 106, 108 (7th Cir.
2010). Regarding the interaction between these two rules, the
Seventh Circuit has explained that:
A litigant cannot throw all of his grievances, against dozens
of different parties, into one stewpot. Joinder that requires
the inclusion of extra parties is limited to claims arising
from the same transaction or series of related transactions.
See Fed.R.Civ.P. 18, 20; George v. Smith, 507 F.3d
605 (7th Cir. 2007). (To be precise: a plaintiff may put in
one complaint every claim of any kind against a single
defendant, per Rule 18(a), but a complaint may present claim
# 1 against Defendant A, and claim # 2 against Defendant B,
only if both claims arise “out of the same transaction,
occurrence, or series of transactions or occurrences.”
v. Wexford Health Sources, Inc., 689 F.3d 680, ...