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McBee v. Campbell County Det. Center

United States District Court, E.D. Kentucky, Northern Division

March 8, 2017

CAMPBELL CO. DET. CENTER, et al., Defendants.



         Plaintiff 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).[1]

         McBee 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].

         1. Motion to Appoint Counsel.

         In his 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.

         2. Motion to Amend the Complaint.

         Because 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. 19].

         However, 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 action.

         3. Severance of Unrelated Claims.

         A 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.

         The 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 governing rule:

(2) Persons … may be joined in one action as defendants if:
(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.

         Fed. R. 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.” Rule 20(a)(1)(A).

         Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, ...

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