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Hopes v. United States Dep't of Justice

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


March 26, 2008

ROBERT C. HOPES, JR., PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM AND ORDER

Plaintiff, an inmate in the United States Penitentiary in Marion, Illinois, brings this action for alleged violations of his constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Pending in this action is a motion for preliminary injunction (Doc. 36). Essentially, Plaintiff seeks an order directing prison officials to make sufficient copies of the complaint for service upon all defendants. Those copies are not needed at this time; therefore, this motion is DENIED.

The complaint purported contains 18 enumerated claims, but many of these "claims" are simply detailed allegations about one of three separate incidents. Therefore, to facilitate the orderly management of future proceedings in this case, and in accordance with the objectives of Federal Rules of Civil Procedure 8(f) and 10(b), the Court finds it appropriate to break the claims in Plaintiff's pro se complaint and other pleadings into numbered counts, as shown below. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion as to their merit.

COUNT 1: Against Defendants Keys, Eberhart, Spence, Tepovich, Patterson, Edge and Shoff for use of excessive force.

COUNT 2: Against Defendants Hackleman, Hunt, Thomas and Samples for use of excessive force.

COUNT 3: Against Defendants Mash, Lewis, and Boaz for use of excessive force.

Rule 18(a) of the Federal Rules of Civil Procedure permits Plaintiff to assert all of his claims against one defendant in one civil action. Because none of these claims share a defendant in common, these claims must be brought as three separate actions. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

Plaintiff is ADVISED that the Court is inclined to sever Count 2 and Count 3. If these claims are severed, they would be removed from this case and opened as two new cases. Two new case numbers would be assigned, and a separate $350 filing fee would be assessed in each of those two new cases.

Because the imposition of additional filing fees may impose a financial burden on him, Plaintiff is FURTHER ADVISED that he may avoid severance (and the imposition of a second filing fee) by filing a motion to voluntarily dismiss Count 2 and Count 3 without prejudice within thirty (30) days of the date of this order. Before filing that motion, Plaintiff shall consider whether he could re-file the dismissed claims without running afoul of the applicable two-year statute of limitations.

If Plaintiff does not file a motion of voluntary dismissal within thirty days, Count 2 and Count 3 will be severed into separate actions, and Plaintiff will be required to pay the $350 filing fee for each of those new cases.

IT IS SO ORDERED.

David R Herndon CHIEF JUDGE UNITED STATES DISTRICT COURT

20080326

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