Rouse et al v. Michigan, State of et al

Filing 8

OPINION and ORDER Summarily Dismissing Without Prejudice the Joint Petition for Writ of Habeas Corpus, Overruling the Objections to the Deficiency Orders, and Granting Plaintiffs a Thirty Day Extension to Correct the Deficiencies. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ARTHUR J. ROUSE, et. Al.,
Plaintiffs,
v.

Case No. 2:17-CV-12276
HONORABLE DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE

STATE OF MICHIGAN, et. Al.,
Defendants.
______________________________________/
OPINION AND ORDER (1) SUMMARILY DISMISSING WITHOUT
PREJUDICE THE JOINT PETITION FOR WRIT OF HABEAS CORPUS,
(2) OVERRULING THE OBJECTIONS TO THE DEFICIENCY ORDERS,
AND (3) GRANTING PLAINTIFFS A THIRTY DAY EXTENSION TO
CORRECT THE DEFICIENCIES
The seven plaintiffs are all inmates who are currently incarcerated at
the Cooper Street Correctional Facility in Jackson, Michigan. The plaintiffs
have filed a proposed class action complaint and a petition for a writ of
mandamus and a writ of habeas corpus. Plaintiffs have filed objections to
the two deficiency orders issued in this case. For the reasons that follow,
the joint habeas petition is SUMMARILY DISMISSED WITHOUT
PREJUDICE. The Court OVERRULES the objections to the deficiency
orders, but GRANTS the plaintiffs a thirty (30) day extension of time to
correct the deficiencies.

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I. Discussion
1. The joint petition for writ of habeas corpus is dismissed
without prejudice.
The portion of the complaint seeking habeas relief is dismissed
without prejudice.
All seven plaintiffs have filed a joint habeas petition together, but
challenge separate and unrelated criminal convictions. It is improper for
different petitioners to file a joint habeas petition in which they seek relief
from different convictions, sentences, or other forms of detention. See
Norton v. Parke, 892 F.2d 476, 478 (6th Cir. 1989). “Several applicants
can not join in a single petition for a writ of habeas corpus.” U.S. ex rel.
Bowe v. Skeen, 107 F. Supp. 879, 881 (N.D.W. Va. 1952). A joint habeas
petition involving several petitioners is improper because none of the
petitioners has any interest in the illegal restraint of the other petitioners. In
re Kosopud, 272 F. 330, 332 (N.D. Ohio 1920). Moreover, numerous
cases have held that a prisoner proceeding pro se is inadequate to
represent the interests of his 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.
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Powell, 695 F. Supp. 632, 643 (D.N.H. 1988). Accordingly, the joint
petition for writ of habeas corpus is dismissed without prejudice to the
plaintiffs each filing their own habeas petition challenging their own
convictions.
B. The petition mandamus is subject to the requirements
of the Prisoner Litigation Reform Act.
Plaintiffs have also filed a petition for writ of mandamus, in which they
challenge what they described as “overcrowded courts” in the state and
federal court systems. Plaintiffs claim that their right of access to the
courts has been violated because the state and federal courts are
understaffed. Plaintiffs also appear to challenge the constitutionality of the
Antiterrorism and Effective Death Penalty Act (AEDPA), which has limited
the ability for state prisoners to obtain federal habeas relief.
On July 14, 2017, Magistrate Judge R. Steven Whalen signed an
Order of Deficiency [Dkt. # 2] because the plaintiffs failed to submit the
portion of their filing fee, which in this case would be $ 57.14, or to each file
a completed application to proceed in forma pauperis. Magistrate Judge
Whalen signed a separate order of deficiency requiring the plaintiffs to
provide sufficient copies of the complaint for service upon the defendants.
[Dkt. # 4]. Both orders gave the plaintiffs until August 14, 2017 to comply
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with the orders.
On July 25, 2017, four of the plaintiffs filed an objection to the
deficiency orders. A supplemental objection was filed by plaintiff Arthur J.
Rouse on July 28, 2017.
Plaintiffs argue that the deficiency orders are invalid because the
filing fee provisions of the Prisoner Litigation Reform Act (PLRA) do not
apply to a petition for writ of mandamus. Plaintiffs allege that Magistrate
Judge Whalen improperly re-characterized their complaint as a civil rights
action brought pursuant to 42 U.S.C. § 1983 in order to improperly impose
the PLRA’s requirements upon their case.
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). The in forma pauperis statute, 28 U.S.C.
§ 1915(a), does provide prisoners the opportunity to make a
“downpayment” of a partial filing fee and pay the remainder in installments.
See Miller v. Campbell, 108 F. Supp. 2d 960, 962 (W.D. Tenn. 2000).
Under the PLRA, a prisoner may bring a civil action in forma pauperis if he

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or she files an affidavit of indigency and a certified copy of the trust fund
account statement for the six-month period immediately preceding the filing
of the complaint. See 28 U.S.C.A. § 1915(a). If the inmate does not pay
the full filing fee and fails to provide the required documents, the district
court must notify the prisoner of the deficiency and grant him thirty days to
correct it or pay the full fee. See McGore v. Wrigglesworth, 114 F. 3d 601,
605 (6th Cir.1997). If the prisoner does not comply, the district court must
presume that the prisoner is not a pauper, assess the inmate the full fee,
and order the case dismissed for want of prosecution. Id.
Plaintiff’s objections are disingenuous. Although Congress primarily
targeted prisoner civil rights cases when it enacted the filing fee provision
of the PLRA, the text of the Act is not limited to such actions. Instead,
Congress chose to make this filing fee provision applicable to all “civil
action[s].” See United States v. Jones, 215 F. 3d 467, 469 (4th Cir. 2000).
The phrase “civil action” contained in the PLRA’s filing fee provisions is not
limited to challenges to the conditions of confinement. See Lefkowitz v. CitiEquity Group, Inc., 146 F. 3d 609, 612 (8th Cir. 1998). Even motions that
are brought under the federal rules of criminal procedure have been
deemed “civil actions,” for the purpose of invoking the PLRA’s filing fee

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requirements, when the prisoner’s motion is, “as a common sense matter,”
a civil proceeding. See Pena v. United States, 122 F. 3d 3, 4 (5th Cir.
1997). If a prisoner proceeding in forma pauperis attempts to cloak
another civil action, such as an alleged civil rights action, as a petition for
writ of habeas corpus or a motion for post-conviction relief, a district court
must assess the prisoner the applicable filing fee under the PLRA. Kincade
v. Sparkman, 117 F. 3d 949, 952 (6th Cir. 1997). “[P]risoners who play
games to avoid the PLRA should not expect courts to cooperate.” Moran v.
Sondalle, 218 F. 3d 647, 651 (7th Cir. 2000).
Contrary to the plaintiffs’ objection, the PLRA’s restrictions on
prisoner litigation apply to mandamus petitions which seek relief analogous
to civil complaints filed under 42 U.S.C. § 1983. See Misiak v. Freeh, 22 F.
App’x. 384, 386 (6th Cir. 2001). The plaintiffs’ claim that they are being
denied access to the courts is non-cognizable as a habeas claim and
would thus be analogous to a claim brought under § 1983. See e.g. Allen v.
Lamanna, 13 F. App’x. 308, 311 (6th Cir. 2001). Accordingly, the Court
overrules the plaintiffs’ objections.
Although the PLRA does not specify how fees are to be assessed
when multiple prisoners file a joint complaint, the Sixth Circuit has held that

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fees and costs should be divided equally in such cases between the
plaintiffs. In Re Prison Litigation Reform Act, 105 F. 3d at 1137-38.
Therefore, unless each plaintiff files an application to proceed in forma
pauperis, he would be responsible for one seventh of the $ 350.00 filing
fee, plus the $ 50.00 administrative fee, or $ 57.14.
The Court also overrules the plaintiffs’ objection to the order requiring
sufficient service copies.
Where a plaintiff is proceeding in forma pauperis, the district court
must bear the responsibility for issuing the plaintiff’s process to a United
States Marshal’s Office, who must effect service upon the defendants once
the plaintiff has properly identified the defendants in the complaint. Byrd v.
Stone, 94 F. 3d 217, 219 (6th Cir. 1996); Fed. R. Civ. P. 4(c)(2); 28 U.S.C.
§ 1915(d). If the plaintiffs choose to proceed in forma pauperis, they will be
required to provide sufficient copies of their complaint for service upon the
defendants.
3. Plaintiffs are given a thirty (30) day extension of time
A district court may, in its discretion, grant an additional thirty days
from the date of the filing of the extension order to allow the prisoner to
correct the deficiency. See McGore v. Wrigglesworth, 114 F. 3d at 605.

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Because of the number of plaintiffs involved in this case and the possible
confusion over the applicability of the PLRA to mandamus actions, the
Court grants plaintiffs a thirty day extension from the date of this order to
correct the deficiencies.
II. ORDER
Based upon the foregoing, IT IS ORDERED that the joint petition for
a writ of habeas corpus is SUMMARILY DISMISSED WITHOUT
PREJUDICE. The Writ of Mandamus claim only REMAINS.
IT IS FURTHER ORDERED That the Plaintiffs’ Objections to the
Deficiency Orders [Dkt. ## 5,6] are OVERRULED.
IT IS FURTHER ORDERED that plaintiffs have a thirty (30) day
extension from the date of this order to correct the deficiencies.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: August 8, 2017
I hereby certify that a copy of the foregoing document was served upon
counsel of record on August 8, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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