Hilliard et al v. Godinez et al

Filing 5

IT IS HEREBY ORDERED that each Plaintiff shall have until February 17, 2015, in which to advise the Court whether he wishes the Court to consider him a plaintiff in this group action. If, by February 17, 2015, any one or more of the Plaintiffs advis es 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.IT IS FURTHER ORDERED that any Plaintiff who does not respond to this order by February 17, 2015, will be cons idered a plaintiff in this action. At that time, the Court will proceed with the preliminary review of the complaint, and each Plaintiff still a party to this action shall be held accountable for all consequences explained above.(Action due by 2/17/2015). Signed by Judge Nancy J. Rosenstengel on 1/27/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEON D. HILLIARD (No. R63769) and
DENZEL L. HARRIS (No. M47960),
Plaintiffs,
vs.
S.A.GODINEZ and
JAMES LUTH,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. 15-cv-05-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiffs, Deon D. Hilliard and Denzel L. Harris, inmates in Vandalia Correctional
Center (“Vandalia”), bring this action for deprivations of their constitutional rights pursuant to
42 U.S.C. § 1983, based on the conditions of confinement at Vandalia. Among other things, they
describe being exposed to asbestos, mold, and dust.
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A. That review cannot be performed, however, until the Court confirms that
each plaintiff understands the hazards associated with joint litigation and yet wants to proceed.
The Seventh Circuit Court of Appeals has held that 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. However, the Circuit has held that each prisoner in the
joint action is required to pay a full filing fee. Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004).
In reaching its conclusion, the Seventh Circuit discounted the trial court’s concerns about
the predatory leanings of some inmates to include other inmates in litigation for their personal

Page 1 of 4

gain. The Circuit noted that throughout the history of prisoner litigation, even before enactment
of the Prison Litigation Reform Act, “jailhouse lawyers surely overstepped their roles on
occasion.”

Boriboune, 391 F.3d at 854.

Also, the Circuit addressed the difficulties in

administering group prisoner complaints, stating that “the rules [of civil procedure] provide
palliatives,” such as severance of the claims pursuant Federal Rule of Civil Procedure 20(b),
pretrial orders providing for a logical sequence of decision pursuant to Rule 16, orders dropping
parties improperly joined pursuant to Rule 21, and orders directing separate trials pursuant to
Rule 42(b). Boriboune, 391 F.3d at 854.
Next, the Circuit focused on the question whether joint prisoner litigation undermines the
system of financial incentives created by the Prison Litigation Reform Act, holding that Prison
Litigation Reform Act did not repeal Rule 20 by implication. 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.” According to the Seventh Circuit, repeal by implication occurs only
when the newer rule “is logically incompatible with the older one.” Id. In concluding that no
irreconcilable conflict exists between Rule 20 and the Act, the 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. 1
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
1

The filing fee for each plaintiff would be $400, or $350, if the plaintiff is granted leave to
proceed in forma pauperis under 28 U.S.C. § 1915.
Page 2 of 4

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 FED. R. CIV. P. 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 each Plaintiff an opportunity to
withdraw from this litigation before the case progresses further. Each Plaintiff 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 Rule 11 of the Federal Rules
of Civil Procedure if such sanctions are found warranted in any
aspect of the case.

Page 3 of 4

•

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).

IT IS HEREBY ORDERED that each Plaintiff shall have until February 17, 2015, in
which to advise the Court whether he wishes the Court to consider him a plaintiff in this group
action. If, by February 17, 2015, any one or more of the Plaintiffs 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.
IT IS FURTHER ORDERED that any Plaintiff who does not respond to this order by
February 17, 2015, will be considered a plaintiff in this action. At that time, the Court will
proceed with the preliminary review of the complaint, and each Plaintiff still a party to this
action shall be held accountable for all consequences explained above.
IT IS SO ORDERED.
DATED: January 27, 2015

______________________________
NANCY J. ROSENSTENGEL
United States District Judge

Page 4 of 4