Bentz et al v. Godinez et al

Filing 98

MEMORANDUM AND ORDER: (Action due by 9/2/2017.) Defendants Robert Hunt, James Barnwell, Daniel Diaz, Marcus Barry, Anteleto Jones, John Reed, Keith Nelson, Muhammad Abdullah, Jesse Perez, Terry Morgan, Cevin Stanford and Brett Sharp are DISMISSED. Denied as Moot 30 MOTION for Leave to Proceed in forma pauperis filed by Eddie Hill, 10 MOTION for Leave to Proceed in forma pauperis filed by James Barnwell, 97 MOTION for Leave to Proceed in forma pauperis filed by Marcus A. Barry, [ 42] MOTION for Leave to Proceed in forma pauperis filed by Daniel Diaz, 15 MOTION for Leave to Proceed in forma pauperis filed by Anteleto Jones, 14 MOTION for Leave to Proceed in forma pauperis filed by Daniel Diaz, 8 MOTION for Lea ve to Proceed in forma pauperis filed by Marcus A. Barry, 9 MOTION for Leave to Proceed in forma pauperis filed by Chris Alexander, 12 MOTION for Leave to Proceed in forma pauperis filed by Robert Hunt, 33 MOTION for Leave to Proceed in forma pauperis filed by Eddie Brothers, 4 MOTION for Leave to Proceed in forma pauperis filed by Chris Alexander. Signed by Chief Judge Michael J. Reagan on 8/5/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID ROBERT BENTZ, et al.,
Plaintiffs,
vs.
SALVADOR GODINEZ, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 17-cv-315-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
This matter is before the Court for case management. On May 2, 2017, Plaintiff Bentz
informed the Court that he intended the Motion to Certify Class (Class Certification Allegations)
(Doc. 25) to be filed as a complaint pursuant to the Court's Order (Doc. 3) dated March 30, 2017,
rather than as a motion. (Doc. 71). Prior to reclassifying the Filing (Doc. 25) as a complaint,
however, the Court sought confirmation that it complies with Rule 11 of the Federal Rules of
Civil Procedure because two separate plaintiffs whose signatures appear to be on the potential
complaint, Plaintiff Hunt and Plaintiff Blaney, filed responses to this Court's Order (Doc. 3) that
indicated they had not signed and/or seen any complaint in this action, much less the one they
appeared to have signed. See (Doc. 48); (Doc. 65).
Because of this, in its Case Management Order (Doc. 85), the Court ordered plaintiffs
whose signatures appeared on the potential complaint, other than Plaintiff Bentz because he filed
it, to notify the Court in writing whether their signature on the document (Doc. 25) was their
own, and, if so, whether they were aware that they were signing a pleading for this lawsuit when
they signed it, and whether they reviewed it prior to signing it. The plaintiffs subject to that
order were John Reed, Marcus Barry, Keith Nelson, Muhammad Abdullah, Jesse Perez, Daniel
1

Diaz, Tuan Fields, Robert Hunt, Terry Morgan, Cevin Stanford, Brett Sharp, James Barnwell,
Jeffrey Blaney, and Anteleto Jones. These plaintiffs were warned that failure to comply with the
Order could result in dismissal from the action for failure to comply with an order of the court
and/or failure to prosecute. (Doc. 85, p. 7) (citing FED. R. CIV. P. 41(b)).
Order Responses
The June 21, 2017 deadline for response to this Court’s Order (Doc. 85) has long passed.
The following plaintiffs did not respond to, and therefore did not comply with the Order (Doc.
85): Cevin Stanford, Jesse Perez, Muhammad Abdullah, Keith Nelson, Brett Sharp, Robert
Hunt, Terry Morgan, John Reed, James Barnwell, and Anteleto Jones. These plaintiffs will
therefore be dismissed from this action with prejudice, per this Court’s warning. (Doc. 85, p. 7)
(citing FED. R. CIV. P. 41(b)). Because in their Responses to this Court’s Order (Doc. 29),
Plaintiffs Jones (Doc. 45), Hunt (Doc. 48), and Barnwell (Doc. 86) requested to be removed
from this action, they will be dismissed per their request without the assessment of a filing fee
and without the assessment of a strike pursuant to 28 U.S.C. § 1915(g). Plaintiffs Stanford,
Perez, Abdullah, Nelson, Sharp, Morgan, and Reed, however, will be obligated to pay the
filing fee but will not be assessed a strike. (See Doc. 29, pp. 10-11).
Plaintiff Marcus Barry filed a Response to the Order (Doc. 95). In it, he claims that he
was not afforded an opportunity to review the potential complaint (Doc. 25) prior to signing it.
Because in his Response (Doc. 52) to this Court’s Order (Doc. 29), Plaintiff Barry requested to
be removed from this action, he will be dismissed per his request without the assessment of a
filing fee and without the assessment of a strike pursuant to 28 U.S.C. § 1915(g).
Plaintiff Daniel Diaz also filed a Response to the Order (Doc. 94). In it, he claims that
he never saw nor did he review the “the motion or lawsuit put in (filed)” prior to signing it.

2

(Doc. 94, p. 1). Because in his Response (Doc. 54) to this Court’s Order (Doc. 29), Plaintiff
Daniel Diaz requested to be removed from this action, he will be dismissed per his request
without the assessment of a filing fee and without the assessment of a strike pursuant to 28
U.S.C. § 1915(g).
Plaintiff Jeffrey Blaney filed a Response to the Order (Doc. 91) as well. In it, he seeks a
full copy of the potential complaint in order to confirm that he previously reviewed and signed it.
Because he filed a Response, he will not be dismissed at this time. His motions associated with
his Response are addressed in detail below.
Plaintiff Tuan Fields also filed a Response to the Order (Doc. 93). In it, he affirms that
he read the potential complaint (Doc. 25) and signed it, and that his printed and signed names in
the potential complaint (Doc. 25) are his. Plaintiff Fields will therefore remain in this action as a
plaintiff for the time being, and this court will consider him to have signed the operative
complaint. Similarly, because Plaintiff David Bentz filed the document (Doc. 25) at issue and
filed the notice (Doc. 71) that he intended it to be filed as a complaint pursuant to the Court's
Order (Doc. 3), rather than as a motion, and also appears to have signed it, this Court will
consider him to have signed the document, and he will remain in this case with no further action
required on his part at this time.
Unique Complaints
Plaintiffs Michael Crenshaw and Elias Diaz have filed multiple complaints in this
action on their own behalves. Currently pending are Crenshaw’s Complaint dated May 30, 2017
(Doc. 87) and Diaz’s Complaint dated May 18, 2017 (Doc. 80). Both of these complaints appear
to seek to incorporate the claims in the Complaint (Doc. 1) filed by Plaintiff Bentz, though do
not fully articulate the claims presented therein. Given the filings by both Plaintiff Bentz and

3

Plaintiff Fields treating the Motion to Certify Class (Class Certification Allegations) (Doc. 25) as
the operative complaint, and because the original Complaint did not comply with Rule 11 as it
was devoid of signatures, this Court considers the Complaint (Doc. 1) to be superseded and
replaced by the Motion to Certify Class (Class Certification Allegations) (Doc. 25), which will
now be considered, and refiled as, the First Amended Complaint in this action.
To satisfy the court that both Crenshaw and Diaz are in compliance with Rule 11, and
have submitted complaints that are in compliance with all of the relevant rules of civil procedure,
the Clerk will be directed to send them both copies of the newly operative First Amended
Complaint (Doc. 25) for their signatures before allowing this action to proceed any further.
Pending Motions
Plaintiff JEFFREY BLANEY filed a Motion for Extension of Time (Doc. 65) to comply
with this Court’s Order (Doc. 29), refiled as a Consolidated Motion for Documents and Motion
to Redocket Motion for Extension of Time (Doc. 92). These Motions are hereby GRANTED as
follows.

Plaintiff Blaney will be provided a copy of the First Amended Complaint, filed

originally as a Motion to Certify Class (Class Certification Allegations) (Doc. 25), as ordered
below. Plaintiff Blaney may advise the Court in writing on or before (9/2/2017) if he does not
wish to continue as a plaintiff in this action. If, by that deadline, Plaintiff Blaney advises the
Court that he does not wish to participate and/or fails to return a signed First Amended
Complaint per this Order, he will be dismissed from the lawsuit and will not be charged a filing
fee for this action. This is the only way to avoid the obligation to pay a filing fee. Alternatively,
if Plaintiff Blaney desires to pursue his claims individually in a separate lawsuit, he shall so
advise the Court in writing by the (9/2/2017) deadline, and his claims shall be severed into a new
action where a filing fee will be assessed.

4

Plaintiff DAVID BENTZ filed a Motion titled “Request for Conference by Video or
Phone with Court and Plaintiffs in this Action and For Clarification” (Doc. 89), which is hereby
STRICKEN. In his Motion (Doc. 89), Plaintiff Bentz requests that this Court hold “a video or
phone conference with each Plaintiff who had not requested to be dismissed in writing to this
Court.” (Doc. 89, p. 1). Plaintiff Bentz is the only individual to have signed the Motion,
however, and this Court has issued multiple warnings, (Doc. 3); (Doc. 29, p. 7); (Doc. 50), that
such group filings would be stricken because each Plaintiff must sign documents for himself or
herself and a non-attorney cannot file or sign papers for another litigant. See Lewis v. Lenc-Smith
Mfg. Co., 784 F.2d 829, 831 (7th Cir. 1986); FED. R. CIV. P. 11. If he so chooses, Plaintiff Bentz
may file a separate motion, on behalf of himself only, to seek the relief he desires.
The following Motions of the plaintiffs who have been and are herein dismissed from this
action are DENIED as MOOT: Docs. 4, 8, 9, 10, 12, 14, 15, 30, 33, 42, 47, and 97.
The following Motions for Leave to Proceed In Forma Pauperis (Docs. 5-7, 11, 16, 31,
42, 76, and 81), Motions to Appoint Counsel (Docs. 22, 77, 82, and 88), and Motion for Service
of Process at Government Expense (Doc. 83) will be addressed in separate orders of this Court.
Disposition
IT IS HEREBY ORDERED that Plaintiffs ROBERT HUNT, JAMES BARNWELL,
DANIEL DIAZ, MARCUS BARRY, and ANTELETO JONES are DISMISSED from this
action with prejudice for failing to respond to this Court’s Order (Doc. 85) and/or notifying this
Court of their desire to be dismissed from this action per this Court’s Order dated April 12, 2017
(Doc. 29). These plaintiffs will not be assessed a filing fee and will not be issued a strike
pursuant to 28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED that Plaintiffs JOHN REED, KEITH NELSON,

5

MUHAMMAD ABDULLAH, JESSE PEREZ, TERRY MORGAN, CEVIN STANFORD,
and BRETT SHARP are DISMISSED from this action with prejudice for failing to respond to
this Court’s Order (Doc. 85). These plaintiffs will be assessed a filing fee but will not be issued
a strike pursuant to 28 U.S.C. § 1915(g).
The CLERK is DIRECTED to refile in CM-ECF the Motion to Certify Class (Class
Certification Allegations) (Doc. 25) as the “First Amended Complaint,” with the original filing
date of April 10, 2017. The newly filed First Amended Complaint will be considered the
operative complaint in this case.
The CLERK is further DIRECTED to terminate the Motion to Certify Class (Class
Certification Allegations) (Doc. 25), as per Plaintiff Bentz’s Notice to Court Regarding Doc. 3
and Doc. 25, this document was not properly filed as a motion and is instead “a signed complaint
by Plaintiffs.” (Doc. 71, p. 1).
In order for this Court to ensure that each of the remaining plaintiffs, who neither filed
the newly titled First Amended Complaint nor attested that they read and signed it, are in
compliance with Rule 11, this Court ORDERS the following plaintiffs to sign and return the
enclosed First Amended Complaint (Doc. 25), which was previously titled “Motion to Certify
Class (Class Certification Allegations),” if they seek to avoid dismissal from this action:
JEFFREY BLANEY, ELIAS DIAZ, and MICHAEL CRENSHAW. These Plaintiffs must
submit a newly signed copy of the First Amended Complaint, enclosed herein, within 28 days
(9/2/2017) of this Order. Failure to comply with this Order may result in dismissal from this
action for failure to comply with an order of the court and/or failure to prosecute. FED. R. CIV. P.
41(b).
Finally, in order to comply with this Court’s Order (Doc. 85), Plaintiff JEFFREY

6

BLANEY is ORDERED to advise the Court in writing on or before (9/2/2017) whether his
signature on the Motion to Certify Class (Class Certification Allegations) (Doc. 25) is his own,
and, if so, whether he was aware that he was signing a pleading for this lawsuit when he signed
it, and whether he reviewed the document prior to signing it. Failure to comply with this Order
may result in dismissal from this action for failure to comply with an order of the court and/or
failure to prosecute. FED. R. CIV. P. 41(b). If Plaintiff Blaney responds in the affirmative to each
of the aforementioned inquiries posed by this Court’s Order (Doc. 85) prior to the deadline, he
will be exempt from the Order requiring him to submit a signed First Amended Complaint by the
deadline in order to avoid dismissal from this action.
Because they failed or were not given the opportunity to opt out of this lawsuit pursuant
to this Court’s Order (Doc. 29), Plaintiffs Fields, Bentz, Diaz, and Crenshaw will be responsible
for paying the filing fee in this action.
The CLERK is DIRECTED to mail a hard copy of Doc. 25, which will be refiled as the
First Amended Complaint, to Plaintiffs Blaney, Diaz, and Crenshaw to enable them to comply
with this Order.
The CLERK is further DIRECTED to send a copy of this Order to each of the named
plaintiffs.
Plaintiffs are ADVISED that the First Amended Complaint will be awaiting preliminary
review by the Court pursuant to 28 U.S.C. § 1915A, and it will not yet be served on the
defendants. Further action by some of the plaintiffs is required before the Court can complete its
preliminary review of this matter under 28 U.S.C. § 1915A. When 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

7

keep the Clerk of Court and each opposing party informed of any change in his or her 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 as to any plaintiff that fails to comply. See
FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: August 5, 2017
__s/MICHAEL J. REAGAN
United States Chief District Judge

8