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Precedential or Non-Precedential: Non-Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Atwell v. Lavan" (2005). 2005 Decisions. Paper 972.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/972
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL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
2
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, 184 F.3d 236, 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, 457 F.2d 1245, 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., 328 F.3d 262, 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.
4
5