United States District Court, W.D. New York
Hugh B. Scott United States Magistrate Judge
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.).
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).
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.”
Second Claim, plaintiff alleges that the Auburn defendants
(Drs. Carl Koenigsmann, Weinstock, Kooi, A. Cincotta, and
nurses Sue Lennox, Reilly, and G. Stanton) 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
answered (Docket No. 28), including allegations of improper
venue and misjoinder of parties (id. ¶¶
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).
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).
did not respond and defendants did not reply.
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 ...