UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________

 :

LIONELL G. MILLER, :

 : Civil Action 

Plaintiff, : 11-0859 (FLW)

 :

v. : 

 :

MICHELLE R. RICCI, et al., :

 : MEMORANDUM OPINION

Defendants. : AND ORDER

_______________________________:

 

IT APPEARING THAT:

1. On February 15, 2011, Plaintiff submitted for filing his

civil complaint (“Complaint”) asserting numerous

challenges. See Docket Entry No. 1. The Complaint arrived 1

accompanied by Plaintiff’s in forma pauperis application to

prosecute the instant matter without prepayment of the

filing fee. See Docket Entry No. 1-1.

2. On April 28, 2011, this Court issued an order in an

accompanying opinion granting Plaintiff in forma pauperis

status for the purposes of the instant matter and addressing

Plaintiff’s challenges raised in the Complaint. See Docket

Entries Nos. 5 and 6. The Court’s order provided, in

pertinent part, as follows:

 The Complaint asserted challenges based on “the events 1

that took place for a number of years before they culminated in

an [alleged] altercation of February 24, 2009.” Docket Entry No.

5, at 2. 

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IT IS . . . ORDERED that Plaintiff’s habeas

challenges are dismissed, without prejudice to

initiation of an appropriate habeas action; and it

is further 

ORDERED that Plaintiff’s Eighth Amendment

excessive force challenges against Officers Fry,

Nagy, Perez, Tyson and Wojciechowski are proceeded

past the sua sponte dismissal stage; and it is

further

ORDERED that all other Plaintiff’s claims are

dismissed with prejudice . . . .

Docket Entry No. 6, at 2.

The Court, therefore, directed service on Officers Fry,

Nagy, Perez, Tyson and Wojciechowski (“Remaining

Defendants”) with regard to the viable claims articulated in

the Complaint, namely, that these Defendants assaulted

Plaintiff during the altercation of February 24, 2009. See

id.; see also Docket Entry No. 5.

2. Seven months after filing his Complaint and five months

after the Court directed service of Plaintiff’s allegations

based on the February 24, 2009, Plaintiff filed his motion

at bar (“Motion”) seeking injunctive relief against – and

monetary damages from – a multitude of persons other than

the Remaining Defendants (“Other Persons”); in support of

this application, Plaintiff’s Motion asserted a panoply of

new claims ensuing from the events which: (i) had no

transactional relation with the alleged February 24, 2009,

altercation; and (ii) occurred years after that altercation

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and even after the Court ruled on Plaintiff’s Complaint. 

See Docket Entry No. 21.2

3. The Remaining Defendants, in their opposition to the Motion,

pointed out that this Court had no jurisdiction over the

Other Persons, who were not parties to this suit. See

Docket Entry No. 28. The Remaining Defendants also pointed

out that they had no involvement in the transactions

challenged in Plaintiff’s Motion, and Plaintiff never

asserted otherwise. See id. In addition, the Remaining

Defendants stressed that monetary damages were not available

as part of preliminary injunctive relief, and – in any event

– Plaintiff did not establish his entitlement to preliminary

injunctive relief. See id.

4. The Remaining Defendants are correct in their assertion that

Plaintiff cannot litigate, in this action, his new

 Specifically, Plaintiff’s Motion asserted that, after this 2

Court directed service on the Remaining Defendants, Plaintiff was

assaulted by a certain inmate on March 17, 2011; in connection

with this allegation, Plaintiff speculates that his current and

former wardens, as well as prison officials other than the

Remaining Defendants, must have directed that inmate to assault

Plaintiff. Plaintiff’s Motion also alleges that his fan, his

radio, four adult magazines and two issues of Prison Legal News

were unduly confiscated from his cell by unidentified prison

officials after this action was long underway. In addition,

Plaintiff’s Motion asserts that, recently, his legal mail began

to be opened outside of his presence. Furthermore, Plaintiff’s

Motion asserts that, recently, Plaintiff’s food was tampered

with, in an unspecified manner, by prison officers, who are

persons other than Remaining Defendants. Finally, Plaintiff’s

Motion alleges that Plaintiff has been denied access to the

prison law library by persons other than Remaining Defendants. 

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challenges, which are transactionally unrelated to the

alleged altercation of February 24, 2009, that underlies the

proceedings at bar. The Remaining Defendants are also

correct in their assertion that preliminary injunctive

relief does not and cannot encompass the relief in form of

monetary damages. Since Plaintiff asserted challenges

transactionally unrelated to the events that gave rise to

the instant matter and which implicated Other Persons, it

appears that Plaintiff’s instant Motion was meant to operate

as either Plaintiff’s amended complaint or a pleading

submitted with the goal to commence a new and separate legal

action.

5. If this Court were to construe Plaintiff’s Motion as an

amended complaint filed without obtaining due leave to make

such filing, such construction would not allow introduction 3

 A litigant cannot introduce new claims by means of a 3

motion: (s)he cannot plead claims by any non-pleading document,

be it moving papers, an opposition to adversaries' motion, the

litigant's traverse, etc. See, e.g., Bell v. City of Phila., 275

Fed. App'x 157, 160 (3d Cir. 2008); Gilmour v. Gates, McDonald &

Co., 382 F.3d 1312, 1315 (11th Cir. 2004); Veggian v. Camden Bd.

of Educ., 600 F. Supp. 2d 615, 628 (D.N.J. 2009). Therefore,

Plaintiff cannot introduce new claims into this litigation by

asserting these new claims in his Motion. However, being mindful

of Plaintiff’s pro se litigant status, this Court cannot rule out

the possibility that Plaintiff was not aware of the fact that he

could assert any new challenges only by means of filing an

amended pleading. However, a litigant may amend his/her pleading

once, as a matter of course, as long as it is filed within 21

days of service, see Fed. R. Civ. P. 15(a)(1)(A); if the litigant

is not seeking to amend its pleading as a matter of course

pursuant to Rule 15(a)(1), then (s)he may only amend its pleading

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of Plaintiff’s challenges stated in his Motion into the

instant matter. Rule 20(a)(2) of the Federal Rules of Civil

Procedure limits the joinder of defendants, and Rule 18(a),

governs the joinder of claims. See Fed. R. Civ. P. 18(a),

20(a)(2). Rule 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 action.” Fed. R. Civ. P.

20(a)(2)(A) and (B). Rule 18 (a) provides : “A party

asserting a claim . . . may join, as independent or

alternative claims, as many claims as it has against an

opposing party.” Fed. R. Civ. P. 18(a). Wright & Miller’s

treatise on federal civil procedure explains that, where

multiple defendants are named, the analysis under Rule 20

precedes that under Rule 18:

Rule 20 deals solely with joinder of parties and

becomes relevant only when there is more than one

party on one or both sides of the action. It is

not concerned with joinder of claims, which is

governed by Rule 18. Therefore, in actions

involving multiple defendants Rule 20 operates

either by first obtaining the opposing party's permission or by

seeking leave of court. See Fed. R. Civ. P. 15(a)(2). Here,

Plaintiff neither obtained consent of the Remaining Defendants to

amen his Complaint not sought this Court’s leave to amend. 

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independently of Rule 18 . . .

Despite the broad language of Rule 18(a),

plaintiff may join multiple defendants in a single

action only if plaintiff asserts at least one

claim to relief against each of them that arises

out of the same transaction or occurrence and

presents questions of law or fact common to all .

. .

Charles Allen Wright, Arthur R. Miller, Mary Kay Kane,

Federal Practice & Procedure Civil 3d §1655; see also 

United States v. Mississippi, 380 U.S. 128, 143 (1965)

(where county registrars were alleged to be carrying on

activities which were part of a series of transactions or

occurrences the validity of which depended upon questions of

law or fact common to all of them, joinder of registrars in

one suit as defendants was proper under Rule 20(a)); Ross v.

Meagan, 638 F. 2d 646, 650 n.5 (3d Cir. 1981), overruled on

other grounds by, Neitzke v. Williams, 490 U.S. 319, 328

(1989) (joinder of defendants is not permitted by Rule 20

unless both commonality and same transaction requirements

are satisfied). Consequently, a civil plaintiff may not

name more than one defendant in his original or amended

complaint unless one claim against each additional defendant

is transactionally related to the claim against the first

defendant and involves a common question of law or fact. 

See Fed. R. Civ. P. 20(a)(2). As the United States Court of

Appeals for the Seventh Circuit explained, a prisoner may

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not join in one case all defendants against whom he may have

a claim, unless the prisoner satisfies the dual requirements

of Rule 20(a)(2):

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 [a multi]-claim, [multi]-

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) . . . 

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

Here, Plaintiff’s panoply of challenges raised in his Motion

has no transactional relation to the alleged altercation of

February 24, 2009, underlying these proceedings, and no

statement made in the Motion indicates that the Remaining

Defendants had any involvement in the events underlying

Plaintiff’s new challenges raised now in his Motion. 

Therefore, Plaintiff’s new challenges cannot be introduced

into this action and, in the event Plaintiff intended for

his Motion to operate as an amended complaint, Plaintiff’s

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challenges stated in his Motion must be dismissed.4

6. The foregoing, however, does not mean that Plaintiff cannot

raise these challenges by means of new pleadings. At this

juncture, this Court has an insufficient basis to construe

Plaintiff’s act of filing the instant Motion as aq fact

clearly establishing that Plaintiff was interested in

commencement of a new and separate civil action. Therefore,

this Court’s directive to open a new civil matter for

Plaintiff would be premature, especially since the Motion

arrived unaccompanied by a filing fee or Plaintiff’s in

forma pauperis application seeking to prosecute these new

challenges without prepayment of the applicable filing fee

of $350. The Clerk will not file a civil rights complaint

unless the person seeking relief pays the entire applicable

filing fee in advance or the person applies for and is

granted in forma pauperis, status pursuant to 28 U.S.C. §

1915. See Local Civil R. 5.1(f). The filing fee for a

 The Court also notes, in passing, that Plaintiff’s new 4

challenges stated in his Motion do not seem to meet the

requirements of Rules 18 and 20 for the purposes of Plaintiff’s

commencement of a new and separate civil proceeding, since the

events asserted by Plaintiff in his Motion appear transactionally

unrelated to one another and involve different persons, whom

Plaintiff designates as wrongdoers in connection with his

assertions stated in the Motion. The Court, therefore, takes

this opportunity to stress that, in the event Plaintiff elects to

commence a new and separate civil action, he should avoid

“buckshot” pleading and should execute his amended complaint

being mindful of the requirements of Rules 18 and 20. 

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civil rights complaint is $350.00. See 28 U.S.C. §

1914(a). If a prisoner seeks permission to file a civil

rights complaint in forma pauperis, the Prison Litigation

Reform Act (“PLRA”) requires the prisoner to file an

affidavit of poverty and a certified prison account

statement for the six-month period immediately preceding the

filing of the complaint. See 28 U.S.C. § 1915(a)(2). The

PLRA further provides that, if the prisoner is granted

permission to file the complaint in forma pauperis, then the

Court is required to assess the $350.00 filing fee against

the prisoner and collect the fee by directing the agency

having custody of the prisoner to deduct installment

payments from the prisoner's prison account equal to 20% of

the preceding month's income credited to the account for

each month that the balance of the account exceeds $10.00. 

See 28 U.S.C. § 1915(b). In addition, if the prisoner is

granted permission to proceed in forma pauperis, then the

PLRA requires this Court to screen the complaint for

dismissal and to dismiss any claim that is frivolous or

malicious, fails to state a claim upon which relief may be

granted, or seeks monetary relief from an defendant who is

immune from such relief. The PLRA further provides that, if

a prisoner has, on three or more occasions while

incarcerated, brought an action or appeal in a federal court

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that was dismissed as frivolous or malicious, for failure to

state a claim upon which relief may be granted, or because

it seeks monetary relief from immune defendants, then the

prisoner may not bring another action in forma pauperis

unless he or she is in imminent danger of serious physical

injury. See 28 U.S.C. § 1915(g). Therefore, the courts are

reluctant to re-characterize the litigants’ submissions into

civil complaints, since such re-characterization prevents

the litigants from an opportunity to consider the financial

and “three strikes” implications of their filings. Accord

Toolasprashad v. Grondolsky, 570 F. Supp. 2d 610, 631 and n.

28 (D.N.J. 2008). Correspondingly, this Court will not recharacterize Plaintiff’s Motion into a new and separate

civil complaint, and will not order the Clerk to open a new

matter on the basis of Plaintiff’s new lines of challenges.5

 Although this Court granted Plaintiff in forma pauperis 5

status for the purposes of the instant proceedings, such decision

was reached on the basis of Plaintiff’s affidavit of poverty and

prison account statement submitted on February 15, 2011. At the

instant juncture, that is, more then eight months later, this

Court is not in position to rule on Plaintiff’s suitability for

in forma pauperis status, since Plaintiff’s financial

circumstances might have changed over this period of time. See

Rohn v. Johnston, 415 Fed. App’x 353 (3d Cir. 2011) (where

plaintiff’s submissions did not contain the required affidavit

identifying all of his assets and a declaration that he was

unable to pay the required fees, denial of in forma pauperis

status was proper, since the district court had no means to

determine the plaintiff’s eligibility to proceed in forma

pauperis) (relying on Sinwell v. Shapp, 536 F.2d 15, 19 n.14 (3d

Cir. 1976)). 

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However, no statement made in this Memorandum Opinion and

Order shall be construed as preventing Plaintiff from

commencing a new civil action on the basis of his challenges

articulated in the Motion at bar. 

6. Finally, while the Residual Defendants urge this Court to

reach the merits of Plaintiff’s new lines of challenges,

this Court need not reach these issues since: (a) in the

event Plaintiff elects to commence a new civil action on the

basis of his challenges articulated in his Motion, the

tribunal presiding over that action would be the only

tribunal to render a ruling on these challenges, and this

Court’s resolution of the same would necessarily violate the

limitations of Article III, since this Court’s decision

would be wholly advisory, cf. Toll Bros., Inc. v. Twp. of

Readington, 555 F.3d 131, 137 (3d Cir. 2009); and, in any

event (b) the Residual Defendants have no standing to mount

an attack on Plaintiff’s newly-minted challenges. Accord

Sprint Communs. Co., L.P. v. APCC Servs., 554 U.S. 269, 301

(2008) (Roberts, J., dissenting) (“respondents cannot

benefit from the judgment they seek and thus lack Article

III standing. ‘When you got nothing, you got nothing to

lose’”) (quoting, with correction of grammar, Bob Dylan,

Like A Rolling Stone, in On Highway 61, Revisited (Columbia

Records 1965)). 

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IT IS on this 24 day of October , 2011, th

ORDERED that Plaintiff’s Motion, Docket Entry No. 26, is

denied; such denial is without prejudice to Plaintiff’s raising

the challenges articulated in this Motion by filing a new and

separate civil complaint; and it is further

ORDERED that the Clerk shall serve this Memorandum Opinion

and Order upon Defendants by means of electronic delivery; and it

is finally

ORDERED that the Clerk shall serve this Memorandum Opinion

and Order upon Plaintiff by means of regular U.S. mail; the Clerk

shall include in the said mailing a blank civil complaint form

and a blank application form for incarcerated individuals seeking

to commence and prosecute a civil action in forma pauperis.

s/Freda L. Wolfson 

FREDA L. WOLFSON,

United States District Judge

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