Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-23-2005

Atwell v. Lavan
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2340




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Recommended Citation
"Atwell v. Lavan" (2005). 2005 Decisions. Paper 972.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/972


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                                                NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                            NOS. 04-2340/3038
                            ________________

                     GEOFFREY WILLARD ATWELL,

                                 Appellant

                                     v.

THOMAS LAVAN; EDWARD G. RENDELL; MARK S. SCHWEIKER; JEFFREY A.
  BEARD; THOMAS L. JAMES; SHARON M. BURKS; SARAH HART; RANDY
 SEARS; DONALD KELCHNER; MICHAEL J. KAZOR; CHARLES MARSELLA;
   KRISTA J. GRIFFITH; REX P. HILDEBRAND; DAVID L. ROBERTS; LEE T.
BERNARD; JOHN S. SHAFFER; MARY BETH MARSCHIK; MICHAEL FARNAN;
    JOHN THOMAS; MIKE FISHER; MARK H. BERGSTROM; THOMAS W.
    CORBETT, JR.; ROBERT A. GREEVY; JAMES O. THOMAS, JR.; CHUCK
ROBERTS; JAMES J. MCGRADY; ROBERT FANECK; GEORGINE LEACHEY; C.
 ZALEDONIS; KENNETH BURNETT; CHRIS PUTNAM; RICHARD KELLER; W.
 COLE; THOMAS J. WASILEWSKI; RICHARD HOLMES; W.C. WEST; DANIEL
  TUCKER; D.I. SMITH; DAVID MORRIS; STANLEY POHLIDAL; DONALD R.
  JONES; THEODORE HIGGINS; STANLEY BOHINSKI; R. STANISH; SCOTT
 THOMAS; HARRISON; PATRICIA GINOCCHETTI; KELLEY GALLAGHER; J.
  DOKNOVITCH; PATRICIA BUZZARD; LARRY J. LONG; JOHN LABROSKY;
   ERIC MYERS; SHERI GAUGHAN; TOM DOUGHERTY; MYRA LEONARD;
BENJAMIN A. MARTINEZ; WILLIAM F. WARD; ALLEN CASTOR; BARBARA K.
    DESCHER; RICHARD A. KIPP; NICHOLAS A . MULLER; MICHAEL M.
  WEBSTER; GARY R. LUCHT; SEAN R. RYAN; MCCRONE; H. SCOTT ROY;
 MAHLON KING; KATHLEEN ZWIERZYNA; JUDITH B. SELVEY; ROBERT N.
CAMPOLONGO; TARA L. PATTERSON; TIMOTHY P. WILE; JAMES GARDNER
COLLINS; JOSEPH T. DOYLE; DORRIS A. SMITH; DAN R. PELLEGRINI; JAMES
      R. KELLEY; ROCHELLE S. FRIEDMAN; BONNIE R. LEADBETTER;
   ALEXANDER F. BARBIERI; JOHN JEDDIC; THOMAS G. GAVIN; JENNIE
      STEINNAM; DAVID B. MILLER; MCCLOSKY; DAVID FRIEDMAN
                  ____________________________________

               On Appeal From the United States District Court
                   For the Middle District of Pennsylvania
                             (M.D. Pa. Civ. No. 03-cv-01728)
                       District Judge: Honorable Sylvia H. Rambo
                     _______________________________________


                       Submitted Under Third Circuit LAR 34.1(a)
                                   JUNE 22, 2005

  Before: NYGAARD VAN ANTWERPEN AND GREENBERG, CIRCUIT JUDGES

                                  (Filed   June 23, 2005 )


                               _______________________

                                       OPINION
                               _______________________
PER CURIAM

       Geoffrey Willard Atwell, proceeding pro se, appeals an order of the United States

District Court for the Middle District of Pennsylvania dismissing his civil rights

complaint. For the reasons that follow, we will vacate the District Court’s order and

remand for further proceedings.

       While in prison, Atwell filed a complaint under 42 U.S.C. § 1983 against 86

defendants alleging that he was being held in custody beyond the expiration of his

sentence, and that he was denied access to the courts and necessary medical care.

Concluding that the complaint did not contain a short and plain statement of his claims as

required by Federal Rule of Civil Procedure 8, and that his claims do not arise out of the

same transaction or occurrence as required by Rule 20, the Magistrate Judge ordered

Atwell to file an amended complaint, and notified him that if he failed to do so, he would

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recommend that the District Court dismiss his action.

       Atwell filed an amended complaint naming 54 defendants, and raising the same

claims set forth in his initial complaint. The Magistrate Judge concluded that the

amended complaint violated Rule 20, and recommended its dismissal on this basis. The

District Court adopted the Magistrate Judge’s report and recommendation and dismissed

the complaint. The District Court denied Atwell’s subsequent motions for

reconsideration. Atwell was released from prison on May 22, 2004.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review is

plenary. See Tourscher v. McCullough, 

, 240 (3d Cir. 1999) (reviewing

dismissal of complaint under 28 U.S.C. § 1915(e)(2)(B)).

       The District Court correctly recognized that Federal Rule of Civil Procedure 20

allows a plaintiff to join defendants in one action if he asserts a right to relief arising out

of the same transaction or occurrence. Fed. R. Civ. P. 20. However, Rule 21 provides

that misjoinder of parties is not grounds for dismissal of an action. Fed. R. Civ. P. 21;

Sabolsky v. Budzanoski, 

, 1249 (3d Cir. 1972). Although courts may drop

or add parties under Rule 21, they cannot dismiss actions where there has been a

misjoinder of parties. Letherer v. Alger Group, L.L.C., 

, 267 (6th Cir.

2003). Thus, the District Court erred in dismissing Atwell’s complaint on this basis.

       Accordingly, we will vacate the District Court’s order and remand this case for




                                               3
further proceedings.1




   1
    Atwell also appeals the denial of his motion for reconsideration of the order
dismissing his complaint, and the denial of his initial in forma pauperis application.
Based upon our disposition of Atwell’s appeal of the order dismissing his complaint, it is
unnecessary to address the denial of the related motion for reconsideration. Regarding his
appeal related to the denial of in forma pauperis status, we conclude that we have
jurisdiction over this appeal but Atwell has not shown that the District Court erred (the
District Court later granted Atwell’s application to proceed in forma pauperis on appeal).
Finally, to the extent Atwell appeals the denial of appointment of counsel, the District
Court did not abuse its discretion in denying his counsel motion.

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