Trainor et al v. Gebke et al

Filing 13

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that each non-lead Plaintiff (TURNER, GARRETT, GROLEAU, METZEL, and TANZY) shall advise the Court in writingon or before August 18, 2017, whether he wishes to continue as a Plaintiff in this group action. I f, 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 action. IT IS FURTHER ORDERED that each non-lead Pla intiff 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 $400.00 or file a properly completed motion for leave to proceed IFP if he has not already done so, on or before August 18, 2017. Signed by Judge David R. Herndon on 7/19/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
COREY TRAINOR, # B-51552,
MICHAEL TURNER, # K-51650,
TERRANCE GARRETT, # N-92748,
JAMES GROLEAU, # R-52557,
DYLAN METZEL, # B-56652,
and KEVEREZ TANZY, # B-76690,
Plaintiffs,
v.

No. 3:17-cv-00627-DRH

LARRY GEBKE,
ROBERT C. MUELLER,
MONICA CHRISTIANSON,
and OFFICER ROVENSTEIN,
Defendants.

MEMORANDUM AND ORDER
HERNDON, District Judge:
This matter is before the Court for case management. On June 14, 2017,
Plaintiff Trainor filed the instant action naming himself and 5 other individuals as
Plaintiffs, all of whom are incarcerated at Centralia Correctional Center
(“Centralia”). Only Trainor signed the Complaint, however. (Doc. 1, p. 17). The
Complaint alleges that Defendants have denied each Plaintiff permission to receive
certain publications, in violation of the First Amendment.
Four of the 6 Plaintiffs have filed a motion to proceed in forma pauperis
(“IFP”) (Docs. 2, 6, 8, & 10). The Complaint indicates that Plaintiffs wish to seek

class certification for this action, however, no motion to this effect has been filed. 1
(Doc. 1, pp. 14-16).

Before the Court addresses the need for additional

signatures on the Complaint or considers the pending motions, it is necessary to
deal with some preliminary matters related to the attempt to jointly file this case
as a group action including multiple Plaintiffs.
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 court 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 manage a

A motion for class certification by a pro se incarcerated plaintiff will be unlikely to succeed. 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). The Federal
1

Rules permit class actions to be maintained only if the class representative “will fairly and
adequately protect the interests of the class,” FED. R. CIV. P. 23(a)(4), and “[e]very court that has
considered the issue has held that a prisoner proceeding pro se is inadequate to represent the
interests of his fellow inmates in a class action.” Lee v. Gardinez, No. 11-cv-570-GPM, 2012 WL
143612, at *1 n.1 (S.D. Ill., Jan. 18, 2012) (quoting Craig v. Cohn, 80 F. Supp. 2d 944, 946 (N.D.
Ind. 2000) (internal citations and quotation marks omitted)).

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 parties pursuant to Federal Rule of Civil Procedure 5. This means that
if there are six plaintiffs, the plaintiffs’ postage and copying costs of filing motions,
briefs or other papers in the case will be six 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 Seventh 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, the plaintiffs will be liable for another full filing
fee for each new case. See George v. Smith, 507 F.3d 605 (7th Cir. 2007). The
Seventh Circuit in Owens v. Godinez, 860 F.3d 434 (7th Cir. 2017), 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.” Boriboune,
391 F.3d at 856. Therefore, in keeping with this suggestion, the Court offers all of
the Plaintiffs, other than Plaintiff Trainor, whom it designates as the “lead”
Plaintiff 2 in this case, 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.

2

Trainor is designated as the lead Plaintiff because he is the only Plaintiff to have signed the
Complaint, and because he is the first Plaintiff listed in the case caption. (Doc. 1).

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). 3
In addition, if Plaintiffs desire to continue this litigation as a group, any
proposed amended complaint, motion, 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. 4

A non-attorney cannot file or sign papers for

another litigant. For this reason, each of the non-lead Plaintiffs who wishes to
continue with this joint action must sign the Complaint before the action may

3

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.
4

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).

proceed. Plaintiffs are WARNED that future group motions or pleadings that do
not comply with this requirement shall be stricken pursuant to Rule 11(a).
Disposition
IT IS HEREBY ORDERED that each non-lead Plaintiff (TURNER,
GARRETT, GROLEAU, METZEL, and TANZY) shall advise the Court in writing
on or before August 18, 2017, 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 action. 5
IT IS FURTHER ORDERED that each non-lead Plaintiff who chooses to
continue as a Plaintiff in this group action must submit a copy of the Complaint
(Doc. 1) bearing his signature, on or before the August 18, 2017, deadline. To
enable the Plaintiffs to comply with this Order, the CLERK is DIRECTED to
return a copy of the 17-page Complaint (Doc. 1, pp. 1-17) to each non-lead
Plaintiff. However, the Clerk need not return a copy of the Exhibits (Docs. 1-1, 12, 1-3, and 1-4), to the Plaintiffs. The Court will retain a copy of the Exhibits now
on file.
IT IS FURTHER ORDERED that if any non-lead Plaintiff wants to pursue
his claims individually in a separate lawsuit, he shall so advise the Court in
writing and he must submit a signed Complaint by the August 18, 2017, deadline.

5

As the lead Plaintiff, Trainor 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).

His claims shall then be severed into a new action where a filing fee will be
assessed and his motion to proceed IFP (if one has been filed) shall be
considered.
IT IS FURTHER ORDERED that each non-lead Plaintiff 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 $400.00 or file a properly completed
motion for leave to proceed IFP if he has not already done so, on or before August
18, 2017.

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, each 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
12/14/2016 to 6/14/17. 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.
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 for Plaintiffs Groleau and Metzel, who have not filed an IFP
motion to date.
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.

Further action by the non-lead Plaintiffs is

required before the Court can complete its preliminary review of this matter
under § 1915A. 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.
Signed this 19th of July, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.07.19
17:00:44 -05'00'
UNITED STATES DISTRICT JUDGE