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Romano v. Levitt

United States District Court, W.D. New York

January 18, 2017

ANTHONY ROMANO, Plaintiff,
v.
DOCTOR LEVITT, et al., Defendants.

          ORDER

          Hon. Hugh B. Scott United States Magistrate Judge

         Before the Court is the moving defendants' motion to sever and to change venue as to certain claims and defendants (Docket No. 34). Defendants move to (a) sever certain defendants (termed by defendants to be the “Auburn defendants”) from the remaining defendants (termed “Wende defendants”) and (b) to transfer the severed claims against the Auburn defendants to the United States District Court for the Northern District of New York. Responses to this motion were due by January 4, 2017, with replies due by January 13, 2017, and the motion deemed submitted as of the latter date (Docket No. 35). Plaintiff did not respond; instead, he wrote to this Court requesting appointment of pro bono counsel (Docket No. 38). Also considered here is plaintiff's letter application for appointment of pro bono counsel (id.).

         BACKGROUND

         This is a civil rights action commenced by plaintiff, an inmate proceeding pro se. He moved to proceed in forma pauperis (Docket No. 2) which was granted (Docket No. 18, Order of Aug. 25, 2016, at 1-2), while also denying his motion (Docket No. 4) to consolidate this case with two other cases, Romano v. C.O. Officers, Quick, et al., Case No. 13CV392; Romano v. Ulrich, et al., 13CV633, pending in this Court (Docket No. 18, Order at 2).

         As summarized in the in forma pauperis Order (id. at 1-2),

“plaintiff alleges that as a result of both a transportation bus accident he was involved in while in the custody of the New York State Department of Corrections and Community Supervision [“DOCCS”], and a motor vehicle accident that occurred prior to his incarceration, he suffered and continues to suffer from numerous injuries. He claims that he has continually sought treatment from the Defendants, various medical personnel at the Wende and Auburn Correctional Facilities, but has been denied adequate and sufficient medical treatment and care in violation of the Eighth Amendment to the United States Constitution.”

         In the Second Claim, plaintiff alleges that the Auburn defendants (Drs. Carl Koenigsmann, Weinstock[1], Kooi, A. Cincotta, and nurses Sue Lennox, Reilly, and G. Stanton[2]) denied him medical care on July 30, 2014 (Docket No. 1, Compl, at 5-6), while in the First Claim plaintiff alleges that the Wende defendants (Drs. Levitt and S. Leuthe) denied plaintiff adequate medical care from December 20, 2013 (id. at 5).

         Defendants answered (Docket No. 28), including allegations of improper venue and misjoinder of parties (id. ¶¶ 21, 22).

         This Court takes judicial notice that the Auburn Correctional Facility is in Cayuga County, New York, which is in the Northern District of New York, 28 U.S.C. § 112(a).

         Defense Motions

         Defendants move to sever the Auburn defendants (including initially identified as Jane Doe Nurse Administrator Mary Coryer, see Docket No. 34, Defs. Memo. at 1 n.1; Docket Nos. 37, 39; note 2, supra) from the Wende defendants (Docket No. 34). They also seek to have the claims against the Auburn defendants moved to the Northern District of New York. They argue that claims against the Auburn defendants are subject to transfer to a more appropriate venue and is a valid reason for severance (Docket No. 34, Defs. Memo. at 3, quoting James v. Osbourne, No. 11 CV 4182 (NGG), 2012 U.S. Dist. LEXIS 147646, at *12 (E.D.N.Y. Apr. 18, 2012) (quoting Coleman v. Lappin, No. 6:10-CV-186, 2011 U.S. Dist. LEXIS 113317, at *4 (E.D. Ky. Sept. 29, 2011)). They cite an earlier case wherein this Court severed and transferred claims occurring at Auburn from claims against defendants located in the Western District of New York, Reid v. Nuttall, No. 08CV870, 2010 U.S. Dist. LEXIS 50102, at *31 (W.D.N.Y. Mar. 11, 2010) (Schroeder, Mag. J.), adopted, 2010 U.S. Dist. LEXIS 50133 (W.D.N.Y. May 20, 2010) (Arcara, J.). They also contend that plaintiff may have cobbled together various claims and grievances from different facilities to evade three-strike provision of the Prison Litigation Reform Act and filing fee requirements (Docket No. 34, Defs. Memo. at 6, quoting Jones v. Forbes, No. 3:15-cv-613 (VAB), 2015 U.S. Dist. LEXIS 62572, at *3-5 & 5 n.2 (D. Conn. May 13, 2015)). Finally, defendants contend that plaintiff's claims would not be prejudiced by severance and transfer, in fact they would be heard more expeditiously (albeit in two courts) (id. at 6-7). Under 28 U.S.C. § 1391, plaintiff's civil rights claims against the Auburn defendants are venued in the district where any defendant resides, here the Northern District of New York (id. at 7), and this Court may transfer an action to any other district, 28 U.S.C. § 1404(a) (id. at 8). Applying the factors for transfer of an action (discussed infra), defendants conclude that claims against some of them are better heard in the Northern District of New York because (among other reasons) the official residence of the Auburn defendants is in that district and all relevant events that occurred in Auburn occurred in that district (id. at 9-10).

         Plaintiff did not respond and defendants did not reply.

         DISCUSSION

         I. Applicable Standards

         A. Motion to Sever

Federal Rule of Civil Procedure 20(a)(2) permits joinder of multiple 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) (Docket No. 34, Defs. Memo. at 1-2). Both prerequisites, the same transaction or occurrence and common question of law or fact, must apply for joinder, McNaughton v. Merck & Co., No. 04 Civ. 8297, 2004 U.S. Dist. LEXIS 30287, at *3 (S.D.N.Y. Dec. 17, 2004) (citing 7 Charles Wright, Arthur Miller & Mary Kane, Federal Practice and Procedure § 1653)) (id. at 2). This joinder decision is within the discretion of this Court, Curacao Trading Co. v. Federal Ins. Co., 137 F.2d 911 (2d Cir. 1943), cert. denied, 321 U.S. 765 (1944). Like a motion to dismiss, the factual assertions made by plaintiff in the Complaint must be accepted as true, see Viada v. Osaka Health Spa, Inc., 235 F.R.D. 55, 61 ...

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