Heard et al v. Snyder et al

Filing 4

OPINION and ORDER Summarily dismissing the Complaint 1 Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LAMONT HEARD, et. al.,
Plaintiffs,

Civil Action No. 2:16-cv-13452

v.

HONORABLE GEORGE CARAM STEEH
UNITED STATES DISTRICT COURT

RICK SNYDER, et. Al.,
Defendants.
/
OPINION AND ORDER SUMMARILY DISMISSING THE COMPLAINT
This is a prisoner civil rights case under 42 U.S.C. § 1983. The plaintiffs are
thirteen Michigan prisoners who were each convicted of first-degree murder. The
plaintiffs challenge the constitutionality of M.C.L.A. 791.234(6), which precludes parole
eligibility for persons convicted of first-degree murder, with the exception of defendants
who were juveniles at the time of the offense. Four of the prisoners, including the lead
plaintiff, Lamont Heard, are confined at the Thumb Correctional Facility in Lapeer,
Michigan. Seven prisoners are confined at the Kinross Correctional Facility in
Kincheloe, Michigan. One prisoner is confined at the Carson City Correctional Facility in
Carson City, Michigan. One prisoner is confined at the Alger Correctional Facility in
Munising, Michigan. Although all thirteen prisoners have filed separate applications to
proceed in forma pauperis, all of the applications are deficient because none include an
authorization to withdraw from trust fund account, a signed certification of the plaintiff’s
prison trust account from an authorized jail official, and a current computerized trust
fund account showing the history of the financial transactions in each of the plaintiff’s
institutional trust fund accounts for the past six months.
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The Court has reviewed the complaint. For the reasons that follow, the complaint
will be dismissed without prejudice to the plaintiffs filing individual complaints on their
behalf.
The Court will dismiss the complaint for several reasons.
First, the applications to proceed in forma pauperis are deficient because none of
the plaintiffs have provided this Court with a written authorization to withdraw funds from
their prison trust fund accounts. The plaintiffs have also failed to provide the Court with
a certified trust account statement from their individual prison accounts. None of the
plaintiffs have filed the $ 400.00 filing fee.
The Prisoner Litigation Reform Act of 1995 (PLRA) states that “if a prisoner
brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to
pay the full amount of a filing fee.” 28 U.S.C. § 1915(b)(1)(as amended). See also In Re
Prison Litigation Reform Act, 105 F.3d 1131, 1138 (6th Cir. 1997). Although the PLRA
does not specify how fees are to be assessed when multiple prisoners file a joint
complaint, the Sixth Circuit has suggested that fees and costs should be divided equally
in such cases between the plaintiffs. Id.1

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Although the courts of this district have relied on the administrative order in In Re Prison
Litigation Reform Act for the proposition that the filing fee should be apportioned between multiple prisoner
plaintiffs, See e.g. Williams v. Lafler, No. 08-13821, 2009 WL 87004, at *1 (E.D. Mich. Jan.12, 2009);
Coleman v. Granholm, No. 06-12485, 2007 WL 1011662, at *2 (E.D.Mich. Mar. 29, 2007), other district
courts within the Sixth Circuit have concluded that since the Sixth Circuit’s administrative order in that
case“did not consider the impact of Fed.R.Civ.P. 20 on implementation of the PLRA [or the fact that] the
PLRA was designed to make prisoners feel the deterrent effect of the filing fee ... [courts should conclude
that] each separate plaintiff is individually responsible for a full filing fee....” Jones v. Fletcher, No.
A.05CV07-JMH, 2005 WL 1175960, at *6 (E.D. Ky. May 5, 2005); Lawson v. Sizemore, No.
A.05-CV-108-KKC, 2005 WL 1514310, at *1 n. 1 (E.D. Ky. June 24, 2005). Other circuits have likewise
held that each prisoner in a multiple prisoner plaintiff action is required to pay the entire filing fee rather
than have the fee apportioned among the different prisoners. See e.g. Hagan v. Rogers, 570 F. 3d 146,
155-56 (3rd Cir. 2009); Boriboune v. Berge, 391 F.3d 852, 855-56 (7th Cir. 2004); Hubbard v. Haley, 262
F.3d 1194, 1198 (11th Cir. 2001).

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28 U.S.C. § 1915(a)(2) requires a prisoner who wishes to proceed without
prepayment of fees and costs in a civil complaint in federal court to file a certified copy
of the trust fund account statement for that prisoner for the six month period
immediately preceding the filing of the complaint or notice of appeal, obtained from the
appropriate official of each prison at which the prisoner is or was confined. See also
McGore v. Wrigglesworth, 114 F. 3d 601, 605 (6th Cir. 1997).
The applications to proceed without prepayment of fees and costs are deficient
because the plaintiffs failed to file an authorization to withdraw funds. The moment
plaintiffs filed the complaint, they became responsible for the filing fee, and waived any
objection to the withdrawal of funds from their trust fund accounts to pay court fees and
costs. McGore v. Wrigglesworth, 114 F. 3d at 605. The applications to proceed without
prepayment of fees or costs are deficient and subject to dismissal because they lack the
requisite authorization forms. See Lindsey v. Roman, 408 F. App’x. 530, 533 (3rd Cir.
2010).
Plaintiffs also failed to provide the Court with a signed certification regarding their
trust fund accounts. An uncertified trust fund account statement, or one that lacks a
signature, is insufficient to satisfy the filing requirements for permitting a prisoner to
proceed in forma pauperis under § 1915(a)(2). See Hart v. Jaukins, 99 F. App’x. 208,
209-10 (10th Cir. 2004).
Finally, plaintiffs failed to provide the Court with a current computerized trust fund
statement of account showing the history of the financial transactions in their
institutional trust fund accounts for the past six months. The complaint is thus subject to
dismissal because of the plaintiffs’ failure to provide the Court a copy of their

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computerized prison trust fund accounts for the past six months. See Davis v. United
States, 73 F. App’x. 804, 805 (6th Cir. 2003).
An additional problem with the complaint is that it appears that the plaintiffs seek
to file a class action suit in this case. The Court will deny any such request by the
plaintiffs to file a class action because none of these plaintiffs can adequately protect
the interests of the class. Numerous cases have held that a prisoner proceeding pro se
is inadequate to represent the interests of his or her fellow inmates in a class action.
See Heard v. Caruso, 351 F. App’x. 1, 15 (6th Cir. 2009); Palasty v. Hawk, 15 F. App’x.
197, 200 (6th Cir. 2001); Craig v. Cohn, 80 F. Supp. 2d 944, 956 (N.D. Ind. 2000);
Caputo v. Fauver, 800 F. Supp. 168, 169 (D.N.J. 1992); Avery v. Powell, 695 F. Supp.
632, 643 (D.N.H. 1988).
If any of the plaintiffs had filed an individual complaint with the above mentioned
deficiencies, this Court would issue an order for that plaintiff to correct the deficiencies
within a certain period of time. If the plaintiff corrected the deficiencies, the case would
proceed. If the plaintiff did not correct the deficiencies, the complaint would be
dismissed. The difficulty in this case concerns when, where, how, and by whom these
various deficiencies would or should be corrected. Also of concern to the Court is the
potential prejudice to the various plaintiffs if there were delays by some of the other
plaintiffs in correcting the deficiencies.
All of this points to a final problem with the complaint, namely, whether this Court
should allow thirteen different prisoners, who are incarcerated in four different prisons
around the State of Michigan, to file a joint complaint. The Court is aware that the
joinder of claims, parties, and remedies is “strongly encouraged” when appropriate to

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further judicial economy and fairness. See United Mine Workers of America v. Gibbs,
383 U.S. 715, 724 (1966). Fed.R.Civ.P. 20(a)(1), in fact, indicates: “Persons may join in
one action as plaintiffs if: (A) 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 (B) any question of law or fact common to all
plaintiffs will arise in the action.” Notwithstanding Fed. R. Civ. P. 20(a)(1), there are
significant practical problems with allowing prisoners who are incarcerated at different
facilities across the State of Michigan to proceed with the same complaint. As another
judge in this district has noted, there are “pervasive impracticalities associated with
multiple-plaintiff prisoner litigation, which militates against permissive joinder even if it
were otherwise allowed by Rule 20(a).” Proctor v. Applegate, 661 F. Supp. 2d 743, 780
(E.D. Mich. 2009)(citing Boretsky v. Corzine, No. 08-2265, 2008 WL 2512916, at * 5
(D.N.J. June 23, 2008)). Several of the problems that arise from multiple plaintiff
prisoner litigation include the “need for each plaintiff to sign every pleading, and the
consequent possibilities that documents may be changed as they are circulated, or that
prisoners may seek to compel prison authorities to permit them to gather to discuss the
joint litigation.” Id. (quoting Boretsky, at * 5). Of particular relevance to the current
complaint is the fact that allowing multiple prisoner-plaintiffs to proceed in a single
action “invites violations of Rule 11(a), which requires every pleading to be signed by all
pro se plaintiffs.” Proctor, 661 F. Supp. 2d at 780 (citing Ghashiyah v. Frank, No.
05-C-0766, 2008 WL 680203, * 1 (E.D.Wis. March 10, 2008). Multiple plaintiff prisoner
cases like these can also often lead to pleadings being filed on behalf of the other
plaintiffs without their consent. Id. An additional problem with multi-plaintiff litigation in

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the prisoner context is that “jail populations are notably transitory, making joint litigation
difficult.” Id. (quoting Boretsky, at *5). Other district courts have also pointed to the
“need for resolution of individualized questions of fact and law surrounding the
requirement for exhaustion of administrative remedies under 42 U.S.C. § 1997e(a).”
Proctor, 661 F. Supp. 2d at 780 (quoting Boretsky, at *6)(additional citations omitted).
Prisoners are simply “not in the same situation as non-prisoner joint plaintiffs; prisoners’
circumstances make joint litigation exceptionally difficult.” Id. (quoting Boretsky, at *6).
The Court recognizes that misjoinder of parties is not normally sufficient to
dismiss an action in its entirety, although misjoined parties can be dismissed from the
action by the Court. See Proctor, 661 F. Supp. 2d at 781 (citing Fed.R.Civ.P.
21)(additional citations omitted). However, in light of the filing deficiencies in this case,
the fact that the plaintiffs appear to be attempting to file a class action on behalf of the
other plaintiffs, as well as the fact that the plaintiffs are incarcerated at separate
facilities, this Court believes that the best course of action would be to dismiss the
complaint without prejudice to the individual plaintiffs filing complaints on their own
behalf.
ORDER
IT IS HEREBY ORDERED that Plaintiffs’ Compaint is DISMISSED WITHOUT
PREJUDICE to the plaintiffs each filing individual complaints on their own behalf.
Dated: October 5, 2016
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
October 5, 2016, by electronic and/or ordinary mail and also
on Lamont Heard #252329, Thumb Correctional Facility,
3225 John Conley Drive, Lapeer, MI 48446.
s/Barbara Radke
Deputy Clerk

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