Coleman et al v. Illinois Department of Corrections et al
Filing
4
ORDER: IT IS HEREBY ORDERED that Plaintiff Brian Coleman shall advise the Court in writing on or before July 26, 2017 whether he wishes to continue as aplaintiff in this group action. IT IS ALSO ORDERED that if plaintiff Brian Coleman 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 if plaintiff Brian Coleman chooses to continue as a plaintiff either in this action or in a severed individual case, he is hereby ORDERED to pay his filing fee of $400.00 or file a properly completed IFP Motion on or before July 26, 2017. The CLERK is DIRECTED to send a copy of this Order to both of the named plaintiffs, and to enclose a blank form IFP Motion and trust fund account certification form for plaintiff Brian Coleman. ( Action due by 7/26/2017). Signed by Judge David R. Herndon on 6/26/2017. (tkm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DWAINE COLEMAN, #B62923, and
BRIAN COLEMAN, #B66876,
Plaintiffs,
vs.
Case No. 17-cv-0518-DRH
ILLINOIS DEPARTMENT OF
CORRECTIONS,
AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL
EMPLOYEES (AFSCME),
KENT BROOKMAN,
JASON HART,
WARDEN LASHBROOK,
UNKNOWN PARTY,
SGT. LINDENBERG,
SGT. TAYLOR,
C/O WASSON,
C/O CORNSTOBBLE,
WEXFORD HEALTH,
MOLDENHAUER,
C/O GORDNER,
C/O GEE,
UNKNOWN PARTY #2,
SGT. JONES,
C/O DUDZYNSKI, and
MAJOR CARTER,
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
This matter is before the Court for case management. The complaint (Doc.
1) was filed by 2 individuals who are in custody at Menard Correctional Center
(“Menard”) located in Menard, Illinois. Together, they filed a complaint that sets
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forth claims against 18 defendants. They claim that they were deprived of certain
necessary items, subjected to unsanitary living conditions, stolen from, and
harassed by corrections officers, among other things. (Doc. 1).
Both plaintiffs named in the case caption signed the complaint. (Doc. 1, p.
9). Plaintiff Dwaine Coleman filed a motion to proceed in forma pauperis (“IFP”)
(Doc. 3), but Brian Coleman has not filed an IFP Motion, nor has he paid his filing
fee. Under the circumstances, the Court deems it necessary to address several
preliminary matters before completing a review of this case pursuant to 28 U.S.C.
§ 1915A.
Group Litigation by Multiple Prisoners
Plaintiffs may bring their claims jointly in a single lawsuit if they so desire.
However, the Court must admonish them as to the consequences of proceeding in
this manner including their filing fee obligations, and give them the opportunity to
withdraw from the case or sever their claims into individual actions.
In Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004), the Seventh Circuit
addressed the difficulties in administering group prisoner complaints. District
courts are required to accept joint complaints filed by multiple prisoners i f 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
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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
decisions 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 parties pursuant to Federal Rule of Civil Procedure 5. This means that
if there are two plaintiffs, the plaintiffs’ postage and copying costs of filing
motions, briefs or other papers in the case will be two times greater than if there
was 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 Seventh Circuit,
a prisoner litigating jointly assumes those risks for all of the claims in the group
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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 must be severed into one or more new cases.
If that severance of claims occurs, the plaintiffs will be liable for another full filing
fee for each new case. See, George v. Smith, 507 F.3d 605 (7th Cir.). The Seventh
Circuit in Owens v. Godinez, No. 15-3892, June 20, 2017, 2017 WL 2655424,
recently issued strong encouragement to district courts to enforce the directive of
George. 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 Seventh 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 plaintiff Brian
Coleman, since the Court designates Dwaine Coleman as the “lead” plaintiff 1 in
this case, an opportunity to withdraw from this litigation before the case
progresses further. Plaintiff Brian Coleman may wish to take into consideration
the following points in making his decision:
He will be held legally responsible for knowing precisely
1
This designation arises from the fact that Dwaine Coleman was the first plaintiff to sign the
complaint (Doc. 1), the first plaintiff listed in the case caption, and the only plaintiff to file an IFP
motion (Doc. 3) thus far.
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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). 2
In addition, if the plaintiffs desire to continue this litigation as a group, any
proposed amended complaint, motion, or other document filed on behalf of both
plaintiffs must be signed by both of the plaintiffs. As long as the plaintiffs appear
without counsel in this action, both plaintiffs 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. 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
2
Effective May 1, 2013, the filing fee for a civil case was increased to $400.00, by the addition of a
new $50.00 administrative fee for filing a civil action, suit, or proceeding in a district court.
See Judicial Conference Schedule of Fees - District Court Miscellaneous Fee Schedule, 28 U.S.C. §
1914, No. 14. A litigant who is granted IFP status, however, is exempt from paying the new $50.00
fee and must pay a total fee of $350.00.
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). Moreover, a
prisoner bringing a pro se action cannot represent a class of plaintiffs. See Oxendine v. Williams,
509 F.2d 1405, 1407 (4th Cir. 1975) (holding it would be plain error to permit imprisoned pro se
litigant to represent his fellow inmates in a class action).
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requirement shall be stricken pursuant to Rule 11(a).
Pending Motion
Plaintiff Dwaine Coleman has filed a motion for leave to proceed IFP (Doc.
3), which will be addressed in a separate order of this Court.
Disposition
IT IS HEREBY ORDERED that Plaintiff Brian Coleman shall advise the
Court in writing on or before July 26, 2017 whether he wishes to continue as a
plaintiff in this group action. If, by that deadline, plaintiff Brian Coleman advises
the Court that he does n ot wish to participate in the action, he will be dismissed
from the lawsuit and will not be charged a filing fee for this action. 4 This is the
only way to avoid the obligation to pay a filing fee for this action.
IT IS ALSO ORDERED that if plaintiff Brian Coleman 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 if plaintiff Brian Coleman chooses to
continue as a plaintiff either in this action or in a severed individual case, he is
hereby ORDERED to pay his filing fee of $400.00 or file a properly completed IFP
Motion on or before July 26, 2017. When a plaintiff files an IFP Motion, the Court
must review that plaintiff’s trust fund account statement for the six month period
4
As the lead plaintiff, Plaintiff Dwaine Coleman 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).
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immediately preceding the filing of this action. Thus, if he files an IFP Motion,
plaintiff Brian Coleman 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
11/15/2016
to
5/15/17.
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 plaintiff
Brian Coleman 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. If Plaintiff
Brian Coleman simply does not respond to this Order on or before July 26,
2017, he will be obligated to pay the 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).
In addition, plaintiffs are 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 both of the
named plaintiffs, and to enclose a blank form IFP Motion and trust fund account
certification form for plaintiff Brian Coleman.
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
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on the defendants. Further action by plaintiff Brian Coleman 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 any plaintiff who remains in the action.
Plaintiffs are further ADVISED that both of them are under a continuing
obligation to keep the Clerk of Court and each opposing party informed of any
change in their addresses; 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.
Digitally signed by
Judge David R. Herndon
Date: 2017.06.26
11:23:35 -05'00'
DATED: June 26, 2017
United States District Judge
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