Burris v. Justus et al
Filing
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MEMORANDUM AND ORDER. Signed by Judge J. Phil Gilbert on 7/28/2014. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRANDON KIRKENDALL, # B-86162,
RESHON FARMER, # B-89073,
LEQUESS LOFTON, # B-88142,
CEASAR M. BURRIS, JR., # B-80496,
and JAMEAL D. SPENCER, # B-86534,
Plaintiffs,
vs.
MEARL JUSTUS,
RICK WATSON,
OFFICER JACK DINGES,
OFFICER NICHOLS,
OFFICER LEVI BRIDGES,
and OFFICER CAMERON REID,
Defendants.
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Case No. 14-cv-772-JPG
MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter is before the Court for case management. Plaintiffs filed the instant action
concerning the conditions of confinement in the St. Clair County Jail during their pretrial
detention there. At the time Plaintiffs filed their complaint, each of them had been convicted in
their St. Clair County criminal cases, and they are now inmates at Menard Correctional Center
(“Menard”).
Each of the five Plaintiffs has signed the complaint (Doc. 1). However, only one Plaintiff
(Brandon Kirkendall) has filed a motion to proceed in forma pauperis (“IFP”) (Doc. 4). That
motion shall be addressed in a separate order. Plaintiff Kirkendall also submitted the prisoner
trust fund statement of co-Plaintiff Farmer (Doc. 5), however, Farmer did not file his own motion
for IFP. In addition, Plaintiffs have jointly filed a “Motion to Amend Petition of the Defendants’
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Exhaustion Remedies of Violations claimed within the Civil Rights Complaint” (Doc. 2). Before
the Court addresses the pending motions, however, it is necessary to deal with some preliminary
matters related to the joint filing of this case by multiple Plaintiffs.
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 multi-plaintiff case. If
appropriate, claims may be severed pursuant to Rule 20(b), pretrial orders may 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.
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
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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. 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 offers Plaintiffs Farmer, Lofton, Burris,
and Spencer (the non-lead Plaintiffs) an opportunity to withdraw from this litigation before the
case progresses further.1 Each of these co-Plaintiffs 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
1
The Court designates Plaintiff Kirkendall, whose name is listed first on the pleadings, as the “lead
Plaintiff” for purposes of this order, because the complaint and both motions filed to date indicate that he
has taken the initiative to bring this claim.
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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 as a group, 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
(7th Cir. 1986); FED. R. CIV. P. 11.2 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 each non-lead Plaintiff (Farmer, Lofton, Burris, and
Spencer) shall have 21 days from the date of entry of this order (on or before August 18, 2014)
in which to advise the Court whether he wishes to continue as a Plaintiff in this group action. If,
by that deadline, any non-lead Plaintiff advises the Court that he does not wish to participate in
the action, he will be dismissed from the lawsuit and will not be charged a filing fee for this
2
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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action.3 This is the only way to avoid the obligation to pay a filing fee for this action.
Alternatively, if any Plaintiff (including lead Plaintiff Kirkendall) wants to pursue his
claims individually in a separate lawsuit, he shall so advise the Court in writing, and his claims
shall be severed into a new action where a filing fee will be assessed.
IT IS FURTHER ORDERED that each non-lead Plaintiff (Farmer, Lofton, Burris,
and Spencer) who chooses to continue as a Plaintiff, either in this action or in a severed
individual case, is hereby ORDERED to pay his filing fee of $400.004 or file a properly
completed IFP Motion on or before August 18, 2014. When a Plaintiff files an IFP Motion, the
Court must review that Plaintiff’s trust fund account statement for the six month period
immediately preceding the filing of this action. Thus, Plaintiff must have the Trust Fund Officer
at his facility complete the attached certification and provide a copy of his trust fund account
statement (or institutional equivalent) for the period 1/1/2014 to 7/8/14. This information should
be mailed to the Clerk of Court at the following address: United States District Court – Southern
District of Illinois, 750 Missouri Avenue, East St. Louis, Illinois 62201.
Failure to submit a properly completed IFP Motion does not relieve a non-lead Plaintiff
of the obligation to pay a filing fee, unless he also submits timely written notice that he does not
intend to proceed with the action. Any non-lead Plaintiff who simply does not respond to this
Order on or before August 18, 2014, will be obligated to pay the full filing fee and will also
be dismissed from this action for want of prosecution and/or for failure to comply with a
court order under Federal Rule of Civil Procedure 41(b).
3
As the lead Plaintiff, Brandon Kirkendall may choose to voluntarily dismiss or sever his claims, but may
not escape his obligation to pay the filing fee for this action, which was incurred when the action was
filed. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467-68 (7th Cir. 1998).
4
A Plaintiff whose application for pauper status is approved will be charged a filing fee of only $350.00,
as he is not subject to the $50.00 administrative fee assessed to non-IFP plaintiffs. See Judical
Conference Schedule of Fees - District Court Miscellaneous Fee Schedule, 28 U.S.C. § 1914, No. 14.
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In addition, Plaintiffs are again WARNED that future group motions or pleadings that do
not comply with the group pleading requirements discussed herein shall be stricken pursuant to
Rule 11(a).
The Clerk is DIRECTED to send a copy of this order to each of the named Plaintiffs,
and to enclose a blank form IFP Motion and trust fund account certification form with each
order.
Plaintiffs are ADVISED that the complaint is currently awaiting preliminary review by
the Court pursuant to 28 U.S.C. § 1915A, and it has not yet been served on the Defendants. As
soon as this review is completed, a copy of the Court’s order will be forwarded to each Plaintiff
who remains in the action.
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: July 28, 2014
s/ J. Phil Gilbert
United States District Judge
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