Oden et al v. True et al

Filing 5

IT IS HEREBY ORDERED that each named plaintiff (other than Plaintiff Oden) must indicate his desire to proceed as a plaintiff in this action by submitting a copy of the Complaint, with his signature under the Declaration Under Federal Rule of Civil P rocedure 11 on page 10, on or before April 30, 2018. If, by that deadline, any non-lead plaintiff does not return a signed Complaint, 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. See attached order for details. (Action due by 4/30/2018). Signed by Chief Judge Michael J. Reagan on 3/29/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER W. ODEN,
DARYL HAMPTON,
JASON NIELSON,
RANDALL PETERSON,
TIMOTHY LOGHRY, SR.,
JOSEPH STOTERAU,
CHRISTIAN IGLESIAS,
JASON SMITH,
EARNEST HALL,
CRAIG ARMSTRONG,
BRAD MONKMAN,
BENJAMIN WINTERS,
JEFFERY BROTHERS,
OLLIE BROWN,
DANIEL HAMMER,
ROY PARRY,
GREGORY ROBINSON,
SHANE ELDER,
RANDALL CAUSEY,
DAVID HARPER,
MICHAEL SNYDER,
SCOTT SULLIVAN,
CHRISTOPHER HARRIS,
JONATHAN VIDLAK,
DAVID HOFFARTH,
PERNELL JONES,
CHRISTOPHER BAILY,
MATTHEW SISNEROS,
JACK GRUBB,
JERALD SIMS,
CONNER WEBB,
TERRELL CLEGGETT,
MARTIN VAN DEURZEN,
JAMES SAY,
CORY CUNNINGHAM,
DARRELL STEWART,
BRENT BAILY,
JACOB HOBART,
ISAAC JOHNSON,
REGINALD THURMOND,
JASON DUNLAP,
JOHN PELTZ,
and TED DURAN,

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Case No. 18-cv-600-MJR

Plaintiffs,
vs.
WILLIAM B. TRUE,
DONALD S. BOYCE,
JEFF SESSIONS, and
MARK INCH,
Defendants.

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MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
This matter is before the Court for case management. The Complaint (Doc. 1, p. 2)
names 43 individuals as plaintiffs who, according to the Complaint, are incarcerated at the
United States Penitentiary in Marion, Illinois. The Complaint sets forth claims against four
defendants and alleges that the Defendants subjected the Plaintiffs to unconstitutional conditions
of confinement in violation of the Eighth and Fourteenth Amendments. (Doc. 1). 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.
Signatures
While the Complaint was submitted with a page with each of the Plaintiffs’ signatures, it
is unclear whether the purported Plaintiffs intended for their signatures to signal their Federal
Rule of Civil Procedure 11 certifications to the court, subjecting them to potential sanctions, or if
this is simply a list of the intended plaintiffs and their signatures. Adding to this ambiguity is a
signature page after the Complaint’s statement of claim, on which Plaintiff Oden alone swears
under penalty of perjury that the “list of signed Plaintiffs agrees to all allegations filed herein.”
(Doc. 1, pp. 2, 10). Because it is unclear whether each of the Plaintiffs, other than Oden, have

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complied with Federal Rule of Civil Procedure 11, the Court will order each plaintiff wishing to
proceed in this action, other than Plaintiff Oden, to submit a properly signed complaint, along
with their Motion to Proceed In Forma Pauperis or filing fee, or risk dismissal from the action.
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 if 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 multiplaintiff 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

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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 ten plaintiffs, the plaintiffs’
postage and copying costs of filing motions, briefs or other papers in the case will be ten 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 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 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 all of the plaintiffs, other than
Plaintiff Oden, whom it designates as the “lead” plaintiff 1 in this case, an opportunity to
1

This designation arises from the fact that Plaintiff Oden is the first plaintiff listed in the case caption of
the Complaint (Doc. 1), the only plaintiff to have signed a sworn statement at the end of the Complaint
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withdraw from this litigation before the case progresses further. Each plaintiff may wish to take
into consideration the following points in making his or her decision:
•

He or she will be held legally responsible for knowing precisely
what is being filed in the case on his or her behalf.

•

He or she 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 or she 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 or she will be required to prosecute his or her
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 or she will be required to pay a full filing
fee, either in installments or in full, depending on whether he or
she 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 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 or herself. 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

(Doc. 1, p. 10), and the only plaintiff that has attempted to file motions on behalf of other plaintiff’s
named in the Complaint thus far. (See Docs. 2, 3)
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
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another litigant. This Court WARNS the Plaintiffs that group filings that do not comply with
this requirement shall be stricken pursuant to Rule 11(a).
Pending Motions
Plaintiff Oden has filed a motion on behalf of all of the plaintiffs seeking leave to proceed
in forma pauperis (“IFP”) and seeking the appointment of counsel (Doc. 2). This Motion is
STRICKEN pursuant to Federal Rule of Civil Procedure 11(a), as Plaintiff Oden attempted to
sign this document on behalf of all of the plaintiffs, and a non-attorney cannot file or sign papers
for another litigant.
Plaintiff Oden also filed Motion for Class Certification (Doc. 3), which is also
STRICKEN pursuant to Rule 11(a). Notably, even absent the Rule 11 violation, this Motion
would not survive. 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 Rules permit class actions to be maintained only if the class

representative (in this case the pro se Plaintiff Oden) “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)).
Disposition
IT IS HEREBY ORDERED that each named plaintiff (other than Plaintiff Oden) must
indicate his desire to proceed as a plaintiff in this action by submitting a copy of the Complaint,

(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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with his signature under the Declaration Under Federal Rule of Civil Procedure 11 on page 10,
on or before April 30, 2018. If, by that deadline, any non-lead plaintiff does not return a signed
Complaint, 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.
IT IS ALSO ORDERED that if any plaintiff wants to pursue his claims individually in a
separate lawsuit, he shall so advise the Court in writing by the April 30, 2018 deadline, and his
claims shall be severed into a new action where a filing fee will be assessed. Any plaintiff that
requests severance must still submit a signed complaint compliant with the above instructions in
order to avoid dismissal.
IT IS FURTHER ORDERED that each plaintiff who continues as a plaintiff either in
this action or in a severed individual case, including Plaintiff Oden, must pay his or her filing fee
of $400.00 or file a properly completed IFP Motion on or before April 30, 2018.
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 or her trust fund account statement (or institutional equivalent) for the
period 9/23/2017 to 3/23/18. 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 that plaintiff of the obligation to pay a filing fee if he or she timely submits a signed
complaint. Any plaintiff who has submitted a signed Complaint but fails to timely submit a
properly completed IFP Motion or filing fee will be obligated to pay the complete filing fee
4

As the lead Plaintiff, Plaintiff Oden 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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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).
The CLERK is DIRECTED to send a copy of this Order and this Court’s form motion
to proceed in forma pauperis to each of the named plaintiffs. To enable the plaintiffs to comply
with this Order, the CLERK is also DIRECTED to return a copy of the 12-page Complaint,
along with the attached 5-page “Memorandum in Support of Unconstitutional Cells” to each
plaintiff. The Clerk need not return a copy of the Exhibits (Doc. 1-2), totaling 40 pages, to the
plaintiffs. The Court will retain a copy of the exhibits on file.
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 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
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).

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IT IS SO ORDERED.
DATED: March 29, 2018
s/ MICHAEL J. REAGAN
United States Chief District Judge

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