United States District Court, D. South Carolina
Sean Milan, individually and on behalf of those similarly situated; Junior Kiker, individually and on behalf of those similarly situated; Anthony Bolden, individually and on behalf of those similarly situated; Dennis Terry, individually and on behalf of those similarly situated; Jeffrey Colberth, individually and on behalf of those similarly situated; Matthew Gilliard, individually and on behalf of those similarly situated, Plaintiffs,
South Carolina Department of Corrections; Dennis Bush, In His Individual Capacity as a Warden at Broad River Correctional Institution; Larry Cartledge, In His Individual Capacity as a Warden at Broad River Correctional Institution; Michael Stephan, In His Individual Capacity as an Associate Warden at Broad River Correctional Institution; Greg Washington, In His Individual Capacity as an Associate Warden at Broad River Correctional Institution; Captain Christine Livingston, in her individual Capacity as a Captain Correctional Officer, Defendants.
J. GOSSET UNITED STATES MAGISTRATE JUDGE
plaintiffs filed this action pursuant to 42 U.S.C. §
1983 alleging violations of their constitutional rights, as
well as asserting various state law claims. This matter is
before the court pursuant to 28 U.S.C. § 636(b) and
Local Civil Rule 73.02(B)(2) (D.S.C.) for pretrial
December 18, 2017, the court held a hearing in this matter on
the defendants' motion to dismiss (ECF No. 18) and motion
to sever and/or bifurcate (ECF No. 19). (ECF No. 31.) On
December 19, 2017, the court held a conference call and
granted the plaintiffs leave to file a Second Amended
Complaint dismissing all corrections officer defendants
without opposition from the defendants. The defendants'
motions to dismiss and sever were terminated as moot with
leave to refile them, if necessary, after the Second Amended
Complaint was filed. (ECF No. 35.) On January 9, 2018, the
plaintiffs filed a Second Amended Complaint. (ECF No. 42.)
matter is now before the court on the defendants' renewed
motion to dismiss, or in the alternative to sever, which the
recently-served defendants have joined. (ECF Nos. 45 &
51.) The plaintiffs have responded in opposition. (ECF No.
initial matter, the defendants seek to dismiss Milan's
Second Amended Complaint as contrary to the agreement and
leave granted in the previous hearing Milan's Second
Amended Complaint did not dismiss all the corrections
officers. The defendants argue that the Second Amended
Complaint continues to fail to contain a cause of action by
each named plaintiff against each named defendant.
Specifically, each plaintiff does not have a claim against
Defendant Livingston. In response, the plaintiffs appear to
assert that they inadvertently filed the incorrect version of
the Second Amended Complaint. The plaintiffs explain that
after the hearing, they discovered that Livingston
has responsibility for the safety and security of the entire
facility. Therefore, Plaintiff's Second Amended Complaint
should have removed individual Plaintiff Sean Milan's
allegations against Ms. Livingston-she is now a defendant in
the case only by virtue of her responsibilities for the
safety and security of the facility, not for any particular
bad acts she may have allegedly taken against any individual
Plaintiff. To clarify, although Ms. Livingston was involved
as an individual actor against a single Plaintiff, that is
not what Plaintiff intended to sue her for in the Second
(Pls.' Resp. at 2, ECF No. 48 at 2.) Based on the
foregoing and having considered the defendants'
objections to the corrected Second Amended Complaint, the
court grants the plaintiffs leave to file the corrected
Second Amended Complaint. (ECF No. 48-1.) The Clerk of Court
is directed to docket this Complaint as the operative Second
Amended Complaint. Accordingly, the defendants' motion to
dismiss is terminated as moot.
defendants alternatively seek to sever or bifurcate the
claims and causes of action asserted by each separate
plaintiff. Rule 20 governs permissive joinder of parties and
provides that “[p]ersons may join in one action as
plaintiffs if: (A) they assert any right to relief 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 plaintiffs will arise in the
action.” Fed.R.Civ.P. 20(a)(1). “Rule 20 grants
courts wide discretion concerning the permissive joinder of
parties.” Aleman v. Chugach Support Servs.
Inc., 485 F.3d 206, n.5 (4th Cir. 2007). Additionally,
“the impulse is toward entertaining the broadest
possible scope of action consistent with fairness to the
parties; joinder of claims, parties and remedies is strongly
encouraged.” United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 724 (1966).
provides that a court may “sever any claim against a
party.” Fed.R.Civ.P. 21. “Under Rule 21, ‘a
court has virtually unfettered discretion in determining
whether or not severance is appropriate.' ”
Grayson Consulting, Inc. v. Cathcart, No.
2:07-CV-02992-DCN, 2014 WL 1512029, at *2 (D.S.C. Apr. 8,
2014) (quoting 17th St. Assocs., LLP v. Markel Int'l
Ins. Co. Ltd., 373 F.Supp.2d 584, 604 n.9 (E.D. Va.
2005)). The court should consider the following factors in
determining whether severance is proper: “(1) whether
the issues sought to be tried separately are significantly
different from one another; (2) whether the separable issues
require different witnesses and different documentary proof;
(3) whether the party opposing severance will be prejudiced
if it is granted; and (4) whether the party requesting
severance will be prejudiced if the claims are not
severed.” Grayson, 2014 WL 1512029, at *2
(quoting Equal Rights Ctr. v. Equity Residential 483
F.Supp.2d 482, 489 (D. Md. 2007)).
the applicable factors, the court finds that at this time,
the plaintiffs have made a sufficient showing that their
claims arise out of a series of transactions or occurrences
by the defendants and have alleged common questions of law or
fact with regard to claims against the defendants.
Specifically, the plaintiffs have alleged that, although
their alleged assaults occurred at different times and in
different factual settings, the claims against the defendants
arise from the same set of alleged improper actions by the
defendants. Thus, the court does not find the plaintiffs are
misjoined at this time. Moreover, applying the factors
regarding severance, the court currently perceives sufficient
overlap of issues and witnesses to maintain this action as
one action. The prejudice factors also appears to weigh in
favor of denying the defendants' motion to sever.
on the foregoing, the defendants' alternative motion to
bifurcate and/or sever is denied at this time.