George v. Smith

• Citation: 507 F.3d 605
• Decision Date: 09 November 2007
• Docket Number: No. 07-1325.,07-1325.
• Parties: Larry GEORGE, Plaintiff-Appellant, v. Judy SMITH, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

507 F.3d 605

Larry GEORGE, Plaintiff-Appellant, v. Judy SMITH, et al., Defendants-Appellees.

No. 07-1325.

United States Court of Appeals, Seventh Circuit.

Submitted October 17, 2007.

Decided November 9, 2007.

Larry George (submitted), Oshkosh, WI, pro se.

John J. Glinski, Jody J. Schmelzer, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.

Before EASTERBROOK, Chief Judge, and MANION and KANNE, Circuit Judges.

EASTERBROOK, Chief Judge.

Larry George, one of Wisconsin's prisoners, sued 24 persons who have had some role in his confinement—guards, wardens, nurses, members of the parole board, and more. His sprawling complaint charges some defendants with failing to provide adequate medical care, others with censoring his mail, yet others with mishandling his applications for parole, and so on. The district court dismissed some of his claims on the pleadings, see 2005 WL 1812890, 2005 U.S. Dist. LEXIS 16139 (W.D.Wis. Aug. 2, 2005), and the rest on summary judgment, see 2007 U.S. Dist. LEXIS 2421 (W.D.Wis. Jan. 10, 2007), 2006 WL 3751407, 2006 U.S. Dist. LEXIS 92290 (W.D.Wis. Dec. 12, 2006), and 467 F.Supp.2d 906 (W.D.Wis.2006).

The district court did not question George's decision to join 24 defendants, and approximately 50 distinct claims, in a single suit. It should have done so. The controlling principle appears in Fed.R.Civ.P. 18(a): "A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party." Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass that this 50-claim, 24-defendant suit produced but also to ensure that prisoners pay the required filing fees—for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g). George was trying not only to save money but also to dodge that rule. He hoped that if even 1 of his 50 claims were deemed non-frivolous, he would receive no "strikes" at all, as opposed to the 49 that would result from making 49 frivolous claims in a batch of 50 suits. The district judge likewise assumed that a single non-frivolous claim in a blunderbuss complaint makes the suit as a whole non-frivolous.

In allowing George to pursue this mishmash of a complaint, the district court may have been influenced by Boriboune v. Berge, 391 F.3d 852 (7th Cir.2004). In 2002 the district court had ruled that multiple prisoners cannot join as plaintiffs in a civil suit, notwithstanding the first sentence of Fed.R.Civ.P. 20(a): "All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action." We held in Boriboune that the PLRA does not supersede Rule 20, though it does require each plaintiff to pay a separate filing fee and expose each plaintiff to a "strike" if any claim in the consolidated complaint is frivolous. After Boriboune the district court has taken an anything-goes approach. But Boriboune does not require this. It holds that the Rules of Civil Procedure apply to suits by prisoners. See also, e.g., Pratt v. Hurley, 79 F.3d 601 (7th Cir.1996) (a district court may not limit prisoners to one civil case on file at a time).

This means that the second sentence of Rule 20(a)—"All persons ... may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action"—is as applicable as the first sentence. A buckshot complaint that would be rejected if filed by a free person—say, a suit complaining that A defrauded the plaintiff, B defamed him, C punched him, D failed to pay a debt, and E infringed his copyright, all in different transactions — should be rejected if filed by a prisoner. George did not make any effort to show that the 24 defendants he named had participated in the same transaction or series of transactions or that a question of fact is "common to all defendants".

When a prisoner does file a multi-claim, multi-defendant suit, the district court should evaluate each claim for the purpose of § 1915(g). Boriboune observed: "when any claim in a complaint or appeal is `frivolous, malicious, or fails to state a claim upon which relief may be granted', all plaintiffs incur strikes" (391 F.3d at 855; emphasis added). George thus incurs two strikes in this litigation— one for filing a complaint containing a frivolous claim, another for an appeal raising at least one frivolous objection to the district court's ruling. Here's just one example: George sued one of the defendants because he saw some particles of food on his plate at dinner, inferred that the dishwasher had malfunctioned, and asserted that this episode placed his health at risk. This does not come within shouting distance of a constitutional grievance under the approach of Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), and similar decisions. George's complaint and appellate brief are full of equally weak claims.

George presents six issues on appeal, but most of these have multiple sub-issues. For example, his first "issue" is: "Was Plaintiff's books and magazines denied for a valid reason?" George ordered lots of publications, and some of them were turned away as pornographic or because they contained gang-related signals. The district court articulated the right rules for the evaluation of these claims under the first amendment, took evidence (some of it in secret to prevent prisoners from learning the prison's security criteria), and concluded that the prison's reasons for withholding the books and magazines are sufficient under decisions such as Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). The district judge's reasons are spelled out in her opinions and need not be rehearsed here.

Only a few of George's arguments call for analysis. One concerns an "atlas" that George ordered. The prison refused to allow its entry, explaining that it might help prisoners plan escapes. That's a sound reason in theory, but George retorts that the prison library itself contains maps and atlases. A prison could not invoke security as a reason to exclude publications that prisoners may read in the library, and which they may copy out for use in their cells. But maybe this "atlas" was more worrisome. We have put the word in quotations because all we know about the book is that George applies that label to it. When the guards declined to allow...