UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MICHAEL KITCHEN, 

 

 Plaintiff, Civil Action No. 14-12883 

 Honorable Victoria A. Roberts 

 Magistrate Judge David R. Grand 

v. 

 

DANIEL HEYNS, et al., 

 

 Defendants. 

__________________________________/ 

REPORT AND RECOMMENDATION TO GRANT DEFENDANTS’ 

MOTION TO SEVER BASED ON MISJOINDER OF PARTIES AND CLAIMS [44] 

Before the Court is the MDOC Defendants’ Motion to Sever Based on Misjoinder of 

Parties and Claims, which was filed on December 26, 2014. (Doc. #44). Pro se plaintiff 

Michael Kitchen (“Kitchen”), an incarcerated person, filed a response to this motion on January 

12, 2015. (Doc. #48). No reply was filed. An Order of Reference was entered on February 13, 

2015, referring all pretrial matters to the undersigned pursuant to 28 U.S.C. §636(b). (Doc. #50). 

Generally, the Court will not hold a hearing on a motion in a civil case in which a party is 

in custody. See L.R. 7.1(f). Here, the Court finds that the facts and legal issues are adequately 

presented in the briefs and on the record, and it declines to order a hearing at this time. 

I. RECOMMENDATION 

For the reasons set forth below, IT IS RECOMMENDED that the MDOC Defendants’ 

Motion to Sever [44] be GRANTED.

II. REPORT 

A. Background

Kitchen is a State of Michigan prisoner who, at all relevant times, was confined at either 

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the Macomb Correctional Facility (“MRF”) or the Alger Correctional Facility (“LMF”).1

 (Doc. 

#1 at ¶3). On July 23, 2014, and July 28, 2014, respectively, he filed a pro se civil rights 

complaint and an amended complaint against numerous Michigan Department of Corrections 

(“MDOC”) officials. (Docs. #1, 6). Broadly speaking, Kitchen challenges the confiscation of 

certain of his property, his transfer from MRF to LMF, and the MDOC’s adoption and use of a 

Segregation Incentive Program. (Id.). In total, Kitchen has now named 22 individuals employed 

at various MDOC facilities as defendants in this action.2

On December 26, 2014, the MDOC Defendants filed the instant motion to sever, 

asserting that Kitchen has improperly joined multiple, unrelated claims against multiple 

defendants in a single action. (Doc. #44). They argue that Kitchen should be allowed to proceed 

with only one claim and ask that the remaining claims and defendants be dismissed without 

prejudice. (Id. at 11). 

B. Kitchen’s Allegations Against the Various Defendants

In order to consider the appropriateness of the relief requested by the MDOC Defendants, 

it is necessary to recite in some detail the specific allegations in Kitchen’s complaint and 

amended complaint. In his original complaint, Kitchen first alleges that in December 2013, 

Defendants LaCroix, Maciejewski, and “other unknown MDOC business office employees” 

confiscated $68.87 that he had intended to use to order two plaid shirts. (Doc. #1 at ¶¶19-22). 

Kitchen then alleges that, in January 2014, he filed a grievance against Defendant Hightower, 

asserting that Hightower stole these shirts. (Id. at ¶¶23-25). According to Kitchen, when he did 

not receive a response to this grievance, he submitted a “kite” to Defendant Steece requesting an 

 

1

 According to the Court’s docket, Kitchen currently is housed at the G. Robert Cotton 

Correctional Facility in Jackson, Michigan. 

2

 Two of the individuals named as defendants by Kitchen – Defendants Lindemuth and Immel – 

are not listed as defendants on the Court’s docket. 

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investigation into the alleged theft of his shirts. (Id. at ¶26). Kitchen claims that, the very next 

day, Defendants Finco, Stephenson, and Gambati transferred him to LMF in retaliation for 

accusing Hightower of stealing his shirts. (Id. at ¶¶27-28). Kitchen apparently arrived at LMF 

after a brief “layover” at a different facility. (Id. at ¶29). 

Kitchen’s complaint then sets forth a series of incidents that allegedly occurred when he 

was housed at LMF. First, Kitchen alleges that Defendant Stasewich accused him of “making 

‘trouble’ at MRF with staff” and then confiscated various of Kitchen’s personal property items. 

(Id. at ¶¶29-31). Kitchen then alleges that Defendant Stasewich, acting with the knowing 

acquiescence of Defendants Bauman and Lindemuth, prepared an improper “NOI” (notice of 

hearing) regarding the personal property items (which apparently had been confiscated as 

contraband). (Id. at ¶¶32-34). Kitchen claims that Defendant Prunick failed to ensure that he 

understood the charges, and, as a result, Kitchen was unable to adequately defend against the 

charges. (Id. at ¶¶35-39). Kitchen further alleges that Defendant Schram conducted the hearing 

on February 20, 2014, and failed to ensure that the minimal requirements of due process were 

met. (Id. at ¶¶38-53). 

Shifting gears, Kitchen next alleges that, on March 31, 2014, he and other prisoners were 

ordered to return to their assigned cells at LMF. (Id. at ¶54). He claims that the water in his cell 

was shut off for a few hours, at which point his toilet backed up, and Defendants Tenuta and 

Seymour refused his request to turn the water back on. (Id. at ¶¶54-65). After Kitchen was 

released from his cell, Defendants Tenuta and Seymour allegedly sprayed his right hand and arm 

with disinfectant. (Id. at ¶¶66-67). Kitchen further alleges that Defendants Eubanks and 

Seymour, under threat of tasers, forced him to undergo a “body cavity search” and then searched 

his cell, haphazardly throwing around his personal property and legal papers, and confiscating 

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certain items. (Id. at ¶¶68-72). Kitchen claims that he spoke with Defendants Bauman, Immel, 

and Schram about the search and alleged confiscation of his legal papers and other property, and 

then filed several grievances. (Id. at ¶¶75-77). According to Kitchen, that same day, he was 

charged with misconduct and placed in segregation. (Id. at ¶¶78-80). 

Switching topics completely, Kitchen alleges that Defendant Russell began harassing him 

with “sexual innuendoes.” (Id. at ¶¶81-82). Kitchen alleges that he complained to Defendants 

Immel and Schram, but they did nothing. (Id. at ¶¶83-84). Kitchen further alleges that after he 

threatened to file a grievance against Russell, Russell “falsely alleged that [Kitchen] had 

threatened to do him physical harm” and placed him in administrative segregation. (Id. at ¶¶90-

91). Kitchen also claims that Defendant Fleury filed a false statement in support of this 

misconduct charge, but he acknowledges that, after an administrative hearing, he was found 

guilty of the charges. (Id. at ¶¶92, 98). 

Kitchen also claims that, from April 1, 2014, to April 5, 2014, while he was in 

administrative segregation, Defendant Eubanks deliberately failed to provide him with food. (Id.

at ¶93). Kitchen claims that, after he filed a grievance regarding this “deprivation of food,” 

Defendant Eubanks issued him another misconduct charge regarding a clock/radio that was 

considered “altered property.” (Id. at ¶¶94-97). Kitchen asserts that this misconduct charge was 

vague, that he was not permitted to properly defend himself at the April 8, 2014, hearing, and 

that his appeal of the (apparently guilty) finding at the hearing is still pending. (Id. at ¶¶98-112, 

130). Kitchen also complains about alleged procedural deficiencies in this misconduct hearing. 

(Id. at ¶¶113-36). 

In his amended complaint, Kitchen alleges that Defendant Hill retaliated against him for 

filing grievances against Defendants Russell and Eubanks by falsely accusing Kitchen of rule 

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violations and then charging him with Insolence and Misusing Property. (Doc. #6 at ¶¶7-13). 

Kitchen then makes allegations against Defendants Heyns, Finco, and Bauman regarding the 

MDOC’s Segregation Incentive Program. (Id. at ¶¶14-36). 

All told, Kitchen sets forth numerous claims in his original and amended complaints. He 

alleges violations of the First, Eighth, and Fourteenth Amendments; the Double Jeopardy Clause; 

the Ex Post Facto Clause; various provisions of the Michigan Constitution; state law claims of 

assault and battery, malicious prosecution, abuse of process, and conversion of property; and 

violations of the Administrative Procedures Act. (Docs. #1, 6). The MDOC Defendants assert 

that Kitchen’s unrelated claims against the 22 named defendants are improperly joined in a 

single action and that severance of certain claims and parties is appropriate. (Doc. #44). 

C. Analysis

Courts have recognized that, “The joinder of claims, parties, and remedies is ‘strongly 

encouraged’ when appropriate to further judicial economy and fairness.” Fields v. Martin, 2013 

WL 5182182, at *4 (E.D. Mich. Sept. 13, 2013) (quoting United Mine Workers of America v. 

Gibbs, 383 U.S. 715, 724 (1966)). This does not mean, however, that parties should be 

permitted to join multiple defendants in a single action when the claims are unrelated. See 

Fields, 2013 WL 5182182, at *4 (citing Pruden v. SCI Camp Hill, 252 F. App’x 436, 437 (3d 

Cir. 2007) and George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)). 

With respect to the joinder of multiple parties in a single lawsuit, Federal Rule of Civil 

Procedure 20(a)(2) provides: 

Persons ... may be joined in one action as 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 

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action. 

When parties are misjoined, “the court may, at any time, on just terms, add or drop a 

party. The court may also sever any claim against a party.” Fed. R. Civ. P. 21. See also Proctor 

v. Applegate, 661 F. Supp. 2d 743, 781 (E.D. Mich. 2009) (dismissal of misjoined parties is 

appropriate under Rule 21) (citing Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 682 

(6th Cir. 1988)); Pruden, 252 F. App’x at 437 (dismissal appropriate where plaintiff claimed 

multiple constitutional violations by different defendants arising out of different transactions and 

occurrences); George, 507 F.3d at 607 (unrelated claims by prisoner against different defendants 

belong in different suits). 

For Kitchen’s claims to be properly joined, then, they must satisfy both requirements of 

Rule 20(a): (1) there must be a right to relief arising out of the same transaction or occurrence, 

and (2) there must be a question of law or fact common to all defendants. See Nali v. Michigan 

Dep’t of Corr., 2007 WL 4465247, at *3 (E.D. Mich. Dec. 19, 2007) (citing Crutcher v. 

Commonwealth of Kentucky, 1992 WL 98020, at *3 (6th Cir. May 11, 1992)). As the Nali court 

recognized, courts may consider many different factors when determining whether civil rights 

claims arise from the same transaction or occurrence; these factors often include “the time period 

during which the alleged acts occurred; whether the acts of discrimination are related; whether 

more than one act of discrimination is alleged; whether the same supervisors were involved; and 

whether the defendants were at different geographical locations.” Nali, 2007 WL 4465247, at *3 

(citing Brown v. Worthington Steel, Inc., 211 F.R.D. 320, 323-25 (S.D. Ohio 2002)). 

In this case, Kitchen has failed to meet Rule 20(a)’s two-part test. He alleges 

discriminatory acts at two different correctional facilities, located in two separate judicial 

districts, over the course of an eight-month period. (Docs. #1, 6). Specifically, Kitchen first 

alleges that, between December 2013 and January 2014, while he was incarcerated at MRF, 

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Defendants LaCroix, Maciejewski, and (possibly) Hightower confiscated $68.87 that he had 

intended to use to order two shirts and/or stole these shirts. (Doc. #1 at ¶¶19-25). Kitchen 

further alleges that he kited Defendant Steece, requesting an investigation into the alleged theft 

of his shirts and, two days later, Defendants Finco, Stephenson, and Gambati illegally transferred 

him to LMF in retaliation for his accusations about the theft of his shirts. (Id. at ¶¶26-28). 

Once Kitchen was transferred to LMF, in January 2014, he alleges that the remaining 

defendants, at various times: confiscated his legal papers and personal property items as 

contraband; deprived him of due process at certain administrative hearings; shut off the water to 

his cell; sprayed disinfectant on his arm; forced him to undergo a strip search; issued false 

misconduct charges; placed him in administrative segregation; deprived him of food; and 

sexually harassed him. (Doc. #1 at ¶¶29-97). In his amended complaint, Kitchen adds additional 

allegations of false misconduct charges and regarding the MDOC’s Segregation Incentive 

Program. (Doc. #6). 

In attempting to rebut the MDOC Defendants’ misjoinder argument, Kitchen asserts that 

all of the claims in his complaint and amended complaint are “derived from one incident” – 

namely, the grievance he filed against Hightower for allegedly stealing his shirts. (Doc. #48 at 3, 

7). Specifically, Kitchen asserts that there is some unspecified “code” among the MDOC 

Defendants that actions should be taken to “break” him in order to prevent him from continuing 

to file grievances. (Id. at 3-4). The problem, however, is that Kitchen has offered no evidence 

supporting his conclusory allegations of an overarching conspiracy among some 22 individuals 

employed at two different correctional facilities (as well as the MDOC’s central office in 

Lansing). Despite Kitchen’s vague allegations that he is being “hounded” from “facility to 

facility,” it is apparent that each of his separate claims presents different questions of law and 

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fact and will require a detailed and particularized analysis. In a passage equally applicable on 

the facts of this case, the Nali court held: 

Because the claims set forth in the Complaint are factually separable, took 

place at different time periods, allege that different defendants violated his 

civil rights in separate ways, and occurred at differing geographic 

locations, permissive joinder of all [of the] individual defendants would 

not provide overlapping proof or testimony. 

Nali, 2007 WL 4465247, at *3. Here, too, considering all of the factual allegations in Kitchen’s 

complaint and amended complaint, Kitchen has failed to demonstrate a right to relief arising out 

of the same transaction or occurrence (or series of transactions or occurrences), or that there is a 

question of law or fact common to all defendants. See Fields, 2013 WL 5182182, at *4 (Rule 

20(a)(2) not satisfied where complaint pled claims involving “distinct factual scenarios, different 

time periods and different legal standards”) (internal quotations and citations omitted). Thus, the 

Court finds merit to the MDOC Defendants’ misjoinder argument. 

Under Fed. R. Civ. P. 21, misjoinder of parties is not a ground for dismissing an action. 

Instead, Rule 21 provides two remedial options: (1) misjoined parties may be dropped “on just 

terms”; or (2) any claims against misjoined parties may be severed and proceeded with 

separately. See Crawford v. Prison Health Servs., 2012 WL 4740219, at *2 (W.D. Mich. Oct. 3, 

2012). Several federal courts have interpreted “on just terms” to mean “without gratuitous harm 

to the parties.” Harris v. Gerth, 2008 WL 5424134, at *5 (E.D. Mich. Dec. 30, 2008) (citing 

cases). In this case, no harm to Kitchen is apparent from the record, as the litigation is in a very 

early stage, and he has articulated none.3

 For these reasons, the Court finds it appropriate to 

 

3

 Because Kitchen’s causes of action occurred no earlier than December 2013, it does not appear 

that there are any statute of limitations concerns. Moreover, Michigan law provides for the 

tolling of the limitations period while an earlier action was pending that was later dismissed 

without prejudice. See Kalasho v. City of Eastpointe, 66 F. App’x 610, 611 (6th Cir. 2003). 

Thus, where the Court is recommending dismissal of certain claims and defendants without 

prejudice, Kitchen will not suffer any gratuitous harm from a statute of limitations perspective. 

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sever Kitchen’s First and Fourteenth Amendment (and corresponding Michigan Constitutional) 

claims against Defendants LaCroix, Maciejewski, Finco, Stephenson, Steece, Gambati, and 

Hightower, and allow Kitchen to proceed with those claims against those defendants. (Doc. #1 

at ¶¶19-28, 137-38). The remaining claims in Kitchen’s complaint and amended complaint, and 

their corresponding defendants, should be dismissed without prejudice. 

III. CONCLUSION

For the reasons set forth above, IT IS RECOMMENDED that the MDOC Defendants’ 

Motion to Sever Based on Misjoinder of Parties and Claims [44] be GRANTED. Kitchen 

should be permitted to proceed with his First and Fourteenth Amendment (and corresponding 

Michigan Constitutional) claims against Defendants LaCroix, Maciejewski, Finco, Stephenson, 

Steece, Gambati, and Hightower. The remainder of Kitchen’s claims against Defendants Heyns, 

Russell, Bauman, Schram, Prunick, Hursh, Tenuta, Seymour, Stasewich, Eubanks, Russell, 

Fleury, Hill, Lindemuth, and Immel should be dismissed without prejudice. 

Dated: May 4, 2015 s/David R. Grand 

Ann Arbor, Michigan DAVID R. GRAND 

 United States Magistrate Judge 

NOTICE TO THE PARTIES REGARDING OBJECTIONS 

Within 14 days after being served with a copy of this Report and Recommendation, any 

party may serve and file specific written objections to the proposed findings and 

recommendations set forth above. See 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b)(2); E.D. 

Mich. LR 72.1(d)(1). Failure to timely file objections constitutes a waiver of any further right of 

appeal. Thomas v. Arn, 474 U.S. 140, (1985); United States v. Sullivan, 431 F.3d 976, 984 (6th 

Cir. 2005). Only specific objections to this Report and Recommendation will be preserved for 

the Court’s appellate review; raising some objections but not others will not preserve all 

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objections a party may have. See Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 

1373 (6th Cir. 1987); see also Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th Cir. 2006). 

Copies of any objections must be served upon the Magistrate Judge. See E.D. Mich. LR 

72.1(d)(2). 

A party may respond to another party’s objections within 14 days after being served with 

a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be 

concise, and should address specifically, and in the same order raised, each issue presented in the 

objections. 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court’s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on May 4, 2015. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager 

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