Withers et al v. Godinez et al

Filing 8

IT IS HEREBY ORDERED that each Plaintiff shall have up to twenty-one days from the date of this order (up to and including May 27, 2015) in which to advise the Court whether he wishes the Court to consider him a plaintiff in this joint action. If on e of the Plaintiffs advises the Court that he does not wish to participate in this joint action, he will be dismissed from the lawsuit and will not be charged a filing fee. Any Plaintiff who opts out from the joint lawsuit is free to bring a separate complaint on his own in this Court. To that end, the CLERK is DIRECTED to send each Plaintiff a copy of a civil rights complaint form. (Action due by 5/27/2015). Signed by Chief Judge Michael J. Reagan on 5/6/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DORCUS WITHERS, and
HENRY BARROWS,
Plaintiffs,
vs.
S. GODINEZ, and
KIMBERLY BUTLER,
Defendants.

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Case No. 3:15-cv-00425-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Withers and Barrows, both inmates at the Menard Correctional Center, have jointly filed
an action pursuant to 28 U.S.C. § 1983 against Salvador Godinez, the Director of the Illinois
Department of Corrections, and Kimberly Butler, the current warden at Menard. While district
courts are obliged to accept joint complaints filed by multiple prisoners if the requirements of
Federal Rule of Civil Procedure 20 are satisfied, there are a number of risks attendant to multiplaintiff litigation. The Seventh Circuit has suggested that district courts make prisoners aware
of these risks before their case progresses, so they can decide whether to opt out of the suit and
bring the claim on their own or continue in the lawsuit in a joint capacity. The Court will lay out
those risks here, and give either Plaintiff an opportunity to opt out of this joint lawsuit.
As the Seventh Circuit explained in Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004),
multi-plaintiff litigation comes with several pitfalls. First, a prisoner who signs a multi-plaintiff
complaint cannot dodge paying filing fees – each prisoner that signs on as a plaintiff is required
to pay the fee. Id. at 855. Second, multi-plaintiff litigation creates countervailing costs: each
court filing must be served on every other plaintiff and the opposing party pursuant to Federal
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Rule of Civil Procedure 5, so if there are two plaintiffs, the plaintiffs’ postage and copying costs
of filing motions, briefs, or other papers will be two times greater than if the prisoner filed on his
own. Third, while a prisoner litigating on his own behalf only takes the risk that his claims may
be deemed sanctionable or count toward the limit of three weak forma pauperis claims allowed
by § 1915(g), a “prisoner litigating jointly under Rule 20 takes those risks for all claims in the
complaint, whether or not they concern him personally.” Id. at 854. In other words, if one
plaintiff engages in conduct that would earn him sanctions or puts forth a weak claim that would
earn him a strike, all plaintiffs can be sanctioned or earn a strike. See id. Finally, each plaintiff
will be held responsible for knowing what is being filed in the case on his behalf by others.
To sum up, joint prisoner litigation under Rule 20 “increase[s] each plaintiff’s risks [for
strikes and sanctions] without a corresponding reduction in the filing fee,” and many prisoners
who are made aware of these facts “opt to litigate by themselves” rather than proceed with the
case in a joint capacity. Boriboune, 391 F.3d at 856. Withers and Barrows should carefully
consider these risks in deciding whether to proceed together or file individually.
One closing note concerning the joinder at issue in this case. Joinder of plaintiffs is
proper only if it satisfies Federal Rule of Civil Procedure 20, which permits joinder of plaintiffs
if “they assert any right to relief jointly, severally, or in the alternative with respect to or arising
out of the same transaction, occurrence, or series of transactions or occurrences,” and “any
question of law or fact common to all plaintiffs will arise in the action.” See also Turley v.
Gaetz, 625 F.3d 1005, 1010 (Rule 20 “allows multiple plaintiffs to join claims arising out of the
same series of occurrences and sharing a question of law or fact common to all plaintiffs”). The
Court expresses no opinion at this time as to whether Plaintiffs can properly join together under

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Rule 20 in this case; that question will be addressed once Barrows and Withers advise the Court
whether they wish to proceed in a joint capacity at all, via the mechanism below.
Disposition
IT IS HEREBY ORDERED that each Plaintiff shall have up to twenty-one days from
the date of this order (up to and including May 27, 2015) in which to advise the Court whether he
wishes the Court to consider him a plaintiff in this joint action. If one of the Plaintiffs advises
the Court that he does not wish to participate in this joint action, he will be dismissed from the
lawsuit and will not be charged a filing fee. Any Plaintiff who opts out from the joint lawsuit is
free to bring a separate complaint on his own in this Court. To that end, the CLERK is
DIRECTED to send each Plaintiff a copy of a civil rights complaint form.
IT IS FURTHER ORDERED that any Plaintiff who does not respond to this order
within twenty-one days will be considered a plaintiff in this action. At that time, the Court will
conduct a merits review of the complaint pursuant to 28 U.S.C. § 1915A. Each Plaintiff still a
party to this action shall be held accountable for all of the consequences explained above.
IT IS FURTHER ORDERED that Plaintiffs’ Motions to Proceed in forma pauperis
(Doc. 2 & 3), Motion to Certify as a Class (Doc. 4), and Motion to Appoint Counsel (Doc. 5) are
held in ABEYANCE pending expiration of the twenty-one day period stated above.
IT IS FURTHER ORDERED that screening of the complaint pursuant to 28 U.S.C. §
1915A is held in ABEYANCE pending expiration of the twenty-one day period stated above.
Plaintiffs are ADVISED that they are 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 his 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
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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: May 6, 2015
s/ MICHAEL J. REAGAN
Chief Judge Michael J. Reagan
United States District Judge

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