Austin v. S.A. Godinez et al

Filing 12

ORDER : The Complaint (Doc. 1) is DISMISSED without prejudice. IT IS HEREBY ORDERED that Plaintiff Hruby shall have 21 days from the date of entry of this order in which to advise the Court in writing whether he wishes to continue as a Plaintiff in this joint action. IT IS FURTHER ORDERED that, if they wish to proceed with this case, Plaintiffs shall file their First Amended Complaint, which shall comply with Federal Rule of Civil Procedure 8, within 21 days of the entry of this order. No ser vice shall be ordered on any Defendant until after the Court completes its § 1915A review of the First Amended Complaint.In order to assist Plaintiffs in preparing their amended complaint, the Clerk is DIRECTED to mail each Plaintiff a blank civil rights complaint form.The Clerk is DIRECTED to send a copy of this order to each of the named Plaintiffs. (Action due by 3/4/2013). Signed by Judge Michael J. Reagan on 2/11/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ALLAN K. AUSTIN, # N-97670,
and ANDREW C. HRUBY, #S-07587,
individually and on behalf of all others
similarly situated,
Plaintiffs,
vs.
S.A. GODINEZ, et al.,
Defendants.

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Case No. 13-cv-84-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
This matter is before the Court for case management. Plaintiffs filed this pro se
civil rights action pursuant to 42 U.S.C. § 1983, concerning their conditions of confinement in
Lawrence Correctional Center (“Lawrence”). Specifically, they claim that since April 2011,
their allotted mealtime has been shortened to approximately eight minutes (they had formerly
been allowed 20 minutes to eat).

Due to this policy change, they often are required by

correctional officers to leave the chow hall before they can finish their meals. As a result, they
must discard a substantial portion of their food and are deprived of adequate nutrition. They
regularly must purchase food from the commissary in order to maintain normal weight. Much of
the complaint is devoted to an exhaustive listing of the time allowed for each meal, measured
from the time the last man was seated in the chow hall, to the time inmates were sent out of the
hall by the officer in charge.
At the outset, the Court has concluded that the instant complaint (Doc. 1), which
consists of a total of 98 handwritten pages and names 176 separate Defendants, runs afoul of
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Federal Rule of Civil Procedure 8.
Rule 8(a)(2) requires a ‘short and plain statement of the claim showing that the
pleader is entitled to relief.’ In addition, Rule 8(e)(1) 1 states that ‘[e]ach
averment of a pleading shall be simple, concise, and direct.’ The primary purpose
of these provisions is rooted in fair notice: Under Rule 8, a complaint ‘must be
presented with intelligibility sufficient for a court or opposing party to understand
whether a valid claim is alleged and if so what it is.’ Wade v. Hopper, 993 F.2d
1246, 1249 (7th Cir.) (citations omitted), cert. denied, 510 U.S. 868, 114 S. Ct.
193, 126 L. Ed. 2d 151 (1993); see also Jennings v. Emry, 910 F.2d 1434, 1436
(7th Cir. 1990) (stating that a complaint ‘must be presented with clarity sufficient
to avoid requiring a district court or opposing party to forever sift through its
pages in search’ of what it is the plaintiff asserts). A complaint that is prolix
and/or confusing makes it difficult for the defendant to file a responsive pleading
and makes it difficult for the trial court to conduct orderly litigation.
Vicom, Inc. v. Harbridge Merch. Serv., Inc., 20 F.3d 771, 775-76 (7th Cir. 1994). See also
Leatherman v. Tarrant Cnty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168
(1993) (discussing Conley v. Gibson, 355 U.S. 41, 48 (1957) (abrogated on other grounds by Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007))); Killingsworth v. HSBC Bank Nevada, N.A.,
507 F.3d 614, 618 (7th Cir. 2007); Dausch v. Rykse, 52 F.3d 1425, 1430 (7th Cir. 1994).
The Court finds that the complaint does not provide a short and plain statement of
the claim, as it requires the Court and Defendants “to forever sift through its pages” to determine
which allegations are made against which of the many Defendants. Jennings v. Emry, 910 F.2d
1434, 1436 (7th Cir. 1990). Proceeding with this pleading also “makes it difficult for . . .
defendant[s] to file a responsive pleading and makes it difficult for the trial court to conduct
orderly litigation.” Vicom, Inc. v. Harbridge Merch. Serv., Inc., 20 F.3d 771, 775-76 (7th Cir.
1994).
Accordingly, the Complaint (Doc. 1) is DISMISSED without prejudice.
1

Due to subsequent amendments to Rule 8, the requirement that a pleading be concise and direct is now
found in Rule 8(d)(1), which states: “Each allegation must be simple, concise, and direct. No technical
form is required.”

Page 2 of 8

Plaintiffs shall be allowed an opportunity to submit an amended complaint within 21 days of the
date of this order, as directed below. In preparing the amended complaint, Plaintiffs are advised
to consider the wisdom of including those Defendants who merely carried out the mealtime
policy, but presumably had no role in formulating the institutional policy or practice which
shortened the meal schedule. In order to maintain a nonfrivolous Eighth Amendment claim for
unconstitutional conditions of confinement, an inmate must establish that he suffered an
objectively serious deprivation of a basic human need such as food. To determine whether a
denial of food raises constitutional concerns, a district court “must assess the amount and
duration of the deprivation.”

Reed v. McBride, 178 F.3d 849, 853 (7th Cir. 1999).

The

complaint, as pled, fails to specify this information for either Plaintiff, let alone for other
potential class members. Further, a prison official cannot be held liable for even an objectively
serious deprivation unless the official knows of and disregards an excessive risk to the inmate’s
health or safety. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Rhodes v. Chapman, 452
U.S. 337, 346 (1981). In addition to the need to amend the complaint, Plaintiffs must decide
whether they wish to proceed jointly in this action, after considering the admonitions below.
In Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004), the court addressed the
difficulties in administering group prisoner complaints. District courts are required to accept
joint complaints filed by multiple prisoners if the criteria of permissive joinder under Federal
Rule of Civil Procedure 20 are satisfied. Rule 20 permits plaintiffs to join together in one
lawsuit if they assert claims “arising out of the same transaction, occurrence, or series of
transactions or occurrences and if any question of law or fact common to these persons will arise
in the action.” Nonetheless, a district court may turn to other civil rules to manage a multiplaintiff case. If appropriate, claims may be severed pursuant to Rule 20(b), pretrial orders may

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be issued providing for a logical sequence of decision pursuant to Rule 16, parties improperly
joined may be dropped pursuant to Rule 21, and separate trials may be ordered pursuant to Rule
42(b). Boriboune, 391 F.3d at 854.
In reconciling the Prisoner Litigation Reform Act with Rule 20, the Seventh
Circuit determined that joint litigation does not relieve any prisoner of the duties imposed upon
him under the Act, including the duty to pay the full amount of the filing fees, either in
installments or in full if the circumstances require it. Id. In other words, each prisoner in a joint
action is required to pay a full civil filing fee, just as if he had filed the suit individually. 2
The Circuit noted that there are at least two other reasons a prisoner may wish to
avoid group litigation. First, group litigation creates countervailing costs. Each submission to
the Court must be served on every other plaintiff and the opposing party pursuant to Federal Rule
of Civil Procedure 5. This means that if there are five plaintiffs, the plaintiffs’ postage and
copying costs of filing motions, briefs or other papers in the case will be five times greater than
if there were a single plaintiff.
Second, a prisoner litigating on his own behalf takes the risk that “one or more of
his claims may be deemed sanctionable under Federal Rule of Civil Procedure 11.” Boriboune,
391 F.3d at 854-55. According to the Circuit, a prisoner litigating jointly assumes those risks for
all of the claims in the group complaint, whether or not they concern him personally.
Furthermore, if the Court finds that the complaint contains unrelated claims against unrelated
defendants, those unrelated claims may be severed into one or more new cases. If that severance
of claims occurs, each Plaintiff will be liable for another full filing fee for each new case.
2

The Court is mindful that Plaintiffs have requested class certification in this action (Doc. 4). However,
the desired certification is by no means assured, and a decision on the class certification motion shall not
be made until after the deadline for amendment of the complaint and for resolution of the joint litigation
matter. In the event that Plaintiffs elect to continue this action together as co-Plaintiffs, and if class
certification is ultimately granted, assessment of a separate filing fee for each Plaintiff may be revisited.
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Plaintiffs may wish to take into account this ruling in determining whether to assume the risks of
group litigation in the federal courts of the Seventh Circuit.
Because not every prisoner is likely to be aware of the potential negative
consequences of joining group litigation in federal courts, the Circuit suggested in Boriboune
that district courts alert prisoners to the individual payment requirement, as well as the other
risks prisoner pro se litigants face in joint pro se litigation, and “give them an opportunity to drop
out.” Id. at 856. Therefore, in keeping with this suggestion, the Court designates Plaintiff
Austin as the lead Plaintiff in this action, and offers Plaintiff Hruby an opportunity to withdraw
from this litigation before the case progresses further. Plaintiff Hruby may wish to take into
consideration the following points in making his decision:
•

He will be held legally responsible for knowing precisely what is being
filed in the case on his behalf.

•

He will be subject to sanctions under Federal Rule of Civil Procedure 11 if
such sanctions are found warranted in any aspect of the case.

•

He will incur a strike if the action is dismissed as frivolous or malicious or
for failure to state a claim upon which relief may be granted.

•

In screening the complaint, the Court will consider whether unrelated
claims should be severed and, if it decides severance is appropriate, he
will be required to prosecute his claims in a separate action and pay a
separate filing fee for each new action.

•

Whether the action is dismissed, severed, or allowed to proceed as a group
complaint, he will be required to pay a full filing fee, either in installments
or in full, depending on whether he qualifies for indigent status under
§§ 1915(b) or (g).
In addition, if Plaintiffs desire to continue this litigation together, any proposed

amended complaint or other document filed on behalf of multiple Plaintiffs must be signed by
each of the Plaintiffs. As long as the Plaintiffs appear without counsel in this action, each
Plaintiff must sign documents for himself. See Lewis v. Lenc-Smith Mfg. Co., 784 F.2d 829, 831
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(7th Cir. 1986); FED. R. CIV. P. 11. 3 A non-attorney cannot file or sign papers for another
litigant. Plaintiffs are WARNED that future group motions or pleadings that do not comply with
this requirement shall be stricken pursuant to Rule 11(a).
IT IS HEREBY ORDERED that Plaintiff Hruby shall have 21 days from the
date of entry of this order (on or before March 4, 2013) in which to advise the Court in writing
whether he wishes to continue as a Plaintiff in this joint action. If, by that deadline, Plaintiff
Hruby advises the Court that he does not wish to participate in this action, he will be dismissed
from the lawsuit and will not be charged a filing fee for this action. Alternatively, if Plaintiff
Hruby wants to pursue his claims individually in a separate lawsuit, he shall so advise the Court,
and his claims shall be severed into a new action where a filing fee will be assessed and his
motion to proceed IFP shall be considered.
IT IS FURTHER ORDERED that if Plaintiff Hruby does not respond to this
order within 21 days, he will be considered a Plaintiff in this action. At that time, the Court will
proceed as described above, and both Plaintiffs shall be held accountable for all consequences
explained above.
IT IS FURTHER ORDERED that, if they wish to proceed with this case,
Plaintiffs shall file their First Amended Complaint, which shall comply with Federal Rule of
Civil Procedure 8, within 21 days of the entry of this order (on or before March 4, 2013). As
noted above, if Plaintiff Hruby elects to proceed with his claims in a separate action, each
Plaintiff shall individually file a First Amended Complaint in compliance with this Order.
An amended complaint supersedes and replaces the original complaint, rendering
the original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638
3

Rule 11 states, in pertinent part: “Every pleading, written motion, and other paper must be signed . . . by
a party personally if the party is unrepresented.” FED. R. CIV. P. 11(a).
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n.1 (7th Cir. 2004). The Court will not accept piecemeal amendments to the original complaint.
Thus, the First Amended Complaint must stand on its own, without reference to any other
pleading. Should the First Amended Complaint not conform to these requirements, it shall be
stricken. Plaintiffs must also re-file any exhibits they wish the Court to consider along with the
First Amended Complaint. Failure to file an amended complaint shall result in the dismissal of
this action with prejudice. Such dismissal shall count as one of the three allotted “strikes” within
the meaning of 28 U.S.C. § 1915(g) for each Plaintiff.
No service shall be ordered on any Defendant until after the Court completes its
§ 1915A review of the First Amended Complaint.
In order to assist Plaintiffs in preparing their amended complaint, the Clerk is
DIRECTED to mail each Plaintiff a blank civil rights complaint form.
The Clerk is DIRECTED to send a copy of this order to each of the named
Plaintiffs.
Pending Motions
Plaintiffs have jointly filed a motion to proceed in forma pauperis (“IFP”) (Doc.
2), a motion to appoint counsel (Doc. 3), a motion for class action certification (Doc. 4), and a
motion for temporary restraining order (“TRO”) or preliminary injunction (Doc. 8). In light of
the dismissal of the operative complaint, all pending motions shall be held in abeyance until after
Plaintiffs respond to the orders herein.
As to the motion for TRO (Doc. 8), Plaintiffs allege that they have been subjected
to the curtailed meal schedule for one year and nine months, which calls into question the notion
that they will suffer immediate and irreparable harm if injunctive relief is not granted. A TRO
may issue without notice:

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only if (A) specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant before
the adverse party can be heard in opposition; and (B) the movant’s attorney
certifies in writing any efforts made to give notice and the reasons why it should
not be required.
FED. R. CIV. P. 65(b). Plaintiffs ask the court to order Defendants to comply with the prison’s
own “institutional rule” that allows ten minutes of meal time after the last man is seated (Doc. 8,
p. 4). Reasonable as that request might seem, it is not the role of a federal court to enforce state
law, much less the institutional policy of a prison. Archie v. City of Racine, 847 F.2d 1211, 1217
(7th Cir. 1988) (en banc), cert. denied, 489 U.S. 1065 (1989). Even if the prison is in violation
of its own policy, such a violation does not necessarily rise to the level of a constitutional harm.
Plaintiff is alerted that since the alleged mealtime shortening dates back to April of 2011, a
showing of “immediate and irreparable injury, loss, or damage” appears unlikely and he may
wish to abandon the TRO claim.
Plaintiffs are further ADVISED that each of them is under a continuing obligation
to keep the Clerk of Court and each opposing party informed of any change in his address; the
Court will not independently investigate a Plaintiff’s whereabouts. This shall be done in writing
and not later than 7 days after a transfer or other change in address occurs. Failure to comply
with this order will cause a delay in the transmission of court documents and may result in
dismissal of this action for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: February 11, 2013
_s/ Michael J. Reagan_________
U.S. District Judge

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