United States District Court, W.D. Wisconsin
OPINION AND ORDER
STEPHEN L. CROCKER MAGISTRATE JUDGE
lawsuit, pro se plaintiff Walter Smith is pursuing
claims related to the adequacy of Ramadan meal bags in 2008,
2009, 2010, and 2011; the availability of proper foods for
the 2009 Eid-ul-Fitr feast; and the adequacy of the halal
diet. On September 12, 2017, I stayed this lawsuit pending
recruitment of counsel. (Dkt. 69.) However, on October 2,
2017, Smith filed a motion in which he seeks an order deeming
severed a claim that the court denied him leave to proceed
upon. (Dkt. 70.) In essence, Smith is asking me to reconsider
the March 25, 2016, leave to proceed order, so I will
construe it as one. For the reasons that follow briefly,
I'm granting the motion and will sever Smith's
contaminated water claim outlined in paragraphs 122 to 135 of
his original complaint.
may file a motion for “reconsideration” under
Federal Rule of Civil Procedure 59(e) to alter or amend a
judgment. “To prevail on a Rule 59(e) motion to amend
judgment, a party must clearly establish (1) that the court
committed a manifest error of law or fact, or (2) that newly
discovered evidence precluded entry of judgment.”
Blue v. Hartford Life & Accident Ins. Co., 698
F.3d 587, 598 (7th Cir. 2012) (internal quotation and
citation omitted). Rule 60(b) allows for relief from a final
judgment or order for “mistake, inadvertence, surprise,
or excusable neglect.” While Smith neither cites the
rules nor explains why he delayed filing this motion for so
long, because the leave to proceed order was not a final
judgment, neither Rule 59 or 60 prevent the court from
considering his motion. Smith accurately points out that I
denied him leave to proceed on a claim related to water
contamination because those allegations were unrelated to his
religious practices claims, and that I directed him to file a
separate lawsuit related to that claim. (See Order,
dkt. 12, at 11 n.4.) As his argument goes, if his water
contamination claim had been severed, then the statute of
limitations would be tolled between when he first filed this
lawsuit, October 2, 2014, and when I denied him leave to
proceed on his water contamination claim, March 25, 2016.
Accordingly, Smith believes that if I deem the March 25,
2016, denial of his leave to proceed as severed rather than
dismissed without prejudice, then his water contamination
claim is not time-barred and it appears he would like to
pursue this claim.
if a district court finds that a plaintiff has mis-joined
parties, then the court should sever those parties or claims,
“allowing those grievances to continue in spin-off
actions, rather than dismiss them.” Wilson v.
Bruce, 400 F. App'x 106, 108 (7th Cir.
2010). Severance, rather than dismissal, “preserves
rights that depend on the date that the complaint was filed,
such as defenses to applicable statutes of limitation.”
Id. (citing Elmore v. Henderson, 227 F.3d
1009, 1012 (7th Cir. 2000)). In Elmore
the Seventh Circuit explained that because Federal Rule of
Civil Procedure 21 expressly permits judges to sever a
misjoined party's claim rather than dismiss it,
“the district court is duty-bound to prevent [adverse
statute of limitations] consequences by severing rather than
dismissing claims.” Id.
court typically follows that path. Specifically, when this
court concludes that a complaint violates Rule 20, the court
issues a show cause order that directs the plaintiff to
either (1) file an amended complaint that comports with Rule
20 or (2) notify the court which lawsuit outlined in the
complaint he would like to proceed upon under that case
number. The reason for this type of order is straightforward:
the court lets the plaintiff choose whether he would like
pursue a separate lawsuit, thus subjecting himself to a new
filing fee and, in Smith's context, the PLRA's
screening requirement, 28 U.S.C. § 1915(e)(2). This
process fulfills the court's obligation to ensure
compliance with Rule 20 in a manner that avoids
“gratuitous harm to the parties.”
Elmore, 227 F.3d at 2012.
however, I did not give Smith that choice at screening.
Instead, because Smith's lengthy complaint focused
primarily on his religious practices claims, I informed him
that he could not proceed on his unrelated water
contamination allegations and directed him to file a separate
lawsuit about it. However, in these circumstances, where the
timeliness of Smith's claims was a legitimate concern
when he filed his complaint in 2014, dismissal rather than
severance did not resolve his misjoinder issue “on just
terms” as required by Rule 21. See Granger v.
Rauch, 388 F. App'x 537, 541 (7th Cir.
2010) (finding that district court erred in dismissing rather
than severing a claim that was dismissed as untimely in a
subsequent lawsuit). The bottom line is that I will grant the
motion and order Smith's contaminated water claim severed
from this lawsuit.
severing this claim, I will direct the clerk of court to open
a new lawsuit limited to that claim. Smith does not need to
file a separate complaint: his complaint in his new lawsuit
will be limited to paragraphs 122-125 of his original
complaint. (See Compl., dkt. 1, at 18-19.) As Smith
will be initiating a new lawsuit, the clerk of court will
direct Smith to either remit a new filing fee or request
leave to proceed in forma pauperis. Finally, as
Smith is incarcerated, he will be subject to PLRA's
screening requirement, 28 U.S.C. § 1915A. If these are
undesired consequences of Smith's motion, he is free to
file a motion for voluntary dismissal or simply do nothing,
in which case the clerk of court will close the case and he
will not owe a filing fee.
final note: although I am granting Smith's current
motion, I am doing so without taking a position on whether a
“newly filed” lawsuit on water contamination is
timely, even if the court assumes that Smith's
“new” complaint is deemed to have been filed on
November 19, 2014, when he filed the lawsuit in this
case. Invoking the statute of limitations is an affirmative
defense that can be waived and can be fact-specific. If Smith
decides to pursue his lawsuit related to his now-severed
water contamination claim from 2008 and 2009, then that issue
will have to be resolved in that lawsuit.
IT IS ORDERED that:
Plaintiff Walter Smith's motion to order misjoined claims
severed (dkt. 70) is GRANTED.
Plaintiff's contaminated water claim set forth in
paragraphs 122-135 of his original complaint (dkt. 1 at
18-19) is SEVERED from this lawsuit.
clerk of court is DIRECTED to open a new lawsuit based on
paragraphs 122-135 of ...