Pare et al v. Britton et al

Filing 17

MEMORANDUM AND ORDER - Each co-plaintiffAndre Thomas, Anthony Hancock, Brian Obst, Brian Spotts, Cory Mattly, Dennis Thomas, Eric Berning, Kenneth Capps, Kurt Brown, Lamar Dunn, Lamont Stuart, Matthew Meyer, Michael Fleming, Orlando Brewer, Ricky Fl etcher, Terrence Thompson, Thad Junge, and William Jordanhas 30 days to advise the court in writing whether he wishes to continue as a plaintiff in this group action. If, by that deadline, any co-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.3 This is the only way to avoid the obligation to pay a filing fee for this action. Alternatively, if any plaintiff wants to purs ue his claims individually in a separate lawsuit, he must so advise the court in writing, and his claims will be severed into a new action where a filing fee will be assessed. Each co-plaintiff who chooses to continue as a plaintiff, either in this action or in a severed individual case, is hereby ORDERED to pay a fee of $400.004or file a properly completed motion for leave to proceed in forma pauperis ("IFP") within 30 days. The clerk of the court is directed to send the Form AO 240 to each of the co-plaintiffsAndre Thomas, Anthony Hancock, Brian Obst, Brian Spotts, Cory Mattly, Dennis Thomas, Eric Berning, Kenneth Capps, Kurt Brown, Lamar Dunn, Lamont Stuart, Matthew Meyer, Michael Fleming, Orlando Brewer, Ricky Fletcher, Terrence Thompson, Thad Junge, and William Jordan. The plaintiffs are again 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 co-plain tiff's Motions for Leave to Proceed in Forma Pauperis (Filing Nos. 10 , 11 , and 12 ) are denied without prejudice to reassertion. Other pending motions (Filing Nos. 3 , 13 , 14 , and 15 ) are denied because they do not comply with group pleading requirements. The clerk of the court is directed to send a copy of this order to each of the following individuals: Andre Pare, Andre Thomas, Anthony Hancock, Brian Obst, Brian Spotts, Cory Mattly, Dennis Thomas, Eric Berning, Kenneth Cap ps, Kurt Brown, Lamar Dunn, Lamont Stuart, Matthew Meyer, Michael Fleming, Orlando Brewer, Ricky Fletcher, Terrence Thompson, Thad Junge, and William Jordan. Ordered by Judge John M. Gerrard. (Copies mailed as directed with form to proceed in forma pauperis)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANDRE PARE, et al.,
Plaintiffs,
v.
FRED BRITTON, SCOT FRAKES,
JANE DOE 1, JANE DOE 2, and
MIKE KINNEY,
Defendants.

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4:15CV3055

MEMORANDUM
AND ORDER

This matter is before the court for case management. Andre Pare filed a
Complaint (Filing No. 1) on May 26, 2015, concerning prison conditions at the
Diagnostic and Evaluation Center in Lincoln, Nebraska. Numerous prisoner plaintiffs
signed the Complaint and numerous others have filed motions in this case seeking to
proceed as plaintiffs. They include: Andre Thomas, Anthony Hancock, Brian Obst,
Brian Spotts, Cory Mattly, Dennis Thomas, Eric Berning, Kenneth Capps, Kurt
Brown, Lamar Dunn, Lamont Stuart, Matthew Meyer, Michael Fleming, Orlando
Brewer, Ricky Fletcher, Terrence Thompson, Thad Junge, and William Jordan.
Andre Pare delivered the Complaint to the court, and his name appears first on
the pleadings. Therefore, the court considers Andre Pare the “lead plaintiff” in this
case. The court considers the other individuals listed above the “co-plaintiffs” in this
case.
Prisoners are allowed to file joint civil rights complaints in this district if the
criteria of permissible joinder under Federal Rule of Civil Procedure 20 are satisfied.
However, pursuant to the Prison Litigation Reform Act, each prisoner in a joint action
must pay the full civil filing fee, even if he is permitted to proceed in forma pauperis.
See 28 U.S.C. § 1915(b)(1); Cole v. Houston, No. 4:06cv3314, 2007 WL 1309821 (D.

Neb. March 30, 2007). In other words, each prisoner in a joint action must pay the
full civil filing fee, just as if he had filed the suit individually.
Because not every prisoner is likely to be aware of the potential negative
consequences of joining group litigation in the federal courts, this court will alert the
plaintiffs to the individual payment requirement, as well as other risks they face in
joint pro se litigation.1 The court offers the co-plaintiffs an opportunity to withdraw
from this litigation before the case progresses further. Each of the co-plaintiffs should
consider the following points when deciding whether or not to withdraw as a plaintiff
from this case:
•

•
•
•

He must pay the full $350 filing fee, either in installments or in full, regardless
of whether this action is dismissed, severed, or allowed to proceed as a group
complaint.
He will be held legally responsible for knowing precisely 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.2
1

See Kirkendall v. Justus, Case No. 14-cv-772-JPG, 2014 WL 3733971 (S.D.Ill.
July 29, 2014) (providing notice to prisoners of the potential negative consequences
of joining group litigation and providing them an opportunity to withdraw from the
litigation).
2

See 28 U.S.C. § 1915(g) (“In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding under this section if the prisoner has,
on 3 or more prior occasions, while incarcerated or detained in any facility, brought
an action or appeal in a court of the United States that was dismissed on the grounds
that it is frivolous, malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious physical injury.”).
2

•

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.

All of the plaintiffs must note that any proposed amended complaint 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 Fed. R. Civ. P. 11. A non-attorney cannot file
or sign papers for another litigant. All of the plaintiffs are WARNED that future
group motions or pleadings that do not comply with this requirement will be stricken
pursuant to Rule 11(a).
IT IS ORDERED that:
1.
Each co-plaintiff—Andre Thomas, Anthony Hancock, Brian Obst, Brian
Spotts, Cory Mattly, Dennis Thomas, Eric Berning, Kenneth Capps, Kurt Brown,
Lamar Dunn, Lamont Stuart, Matthew Meyer, Michael Fleming, Orlando Brewer,
Ricky Fletcher, Terrence Thompson, Thad Junge, and William Jordan—has 30 days
to advise the court in writing whether he wishes to continue as a plaintiff in this group
action. If, by that deadline, any co-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.3 This is the only way to avoid the obligation to pay a
filing fee for this action.

3

As the lead plaintiff, Andre Pare 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); In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997).
3

Alternatively, if any plaintiff wants to pursue his claims individually in a
separate lawsuit, he must so advise the court in writing, and his claims will be severed
into a new action where a filing fee will be assessed.
2.
Each co-plaintiff who chooses to continue as a plaintiff, either in this
action or in a severed individual case, is hereby ORDERED to pay a fee of $400.004
or file a properly completed motion for leave to proceed in forma pauperis (“IFP”)
within 30 days. The clerk of the court is directed to send the Form AO240 to each of
the co-plaintiffs—Andre Thomas, Anthony Hancock, Brian Obst, Brian Spotts, Cory
Mattly, Dennis Thomas, Eric Berning, Kenneth Capps, Kurt Brown, Lamar Dunn,
Lamont Stuart, Matthew Meyer, Michael Fleming, Orlando Brewer, Ricky Fletcher,
Terrence Thompson, Thad Junge, and William Jordan.
Failure to submit a properly completed IFP motion does not relieve a coplaintiff 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. Any co-plaintiff who
simply does not respond to this Memorandum and Order within 30 days will be
obligated to pay the full 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).
3.
The plaintiffs are again 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).

4

A Plaintiff whose application for pauper status is approved will be charged a
filing fee of only $350.00, as he is not subject to the $50.00 administrative fee
assessed to non-IFP plaintiffs.
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4.
The plaintiffs are further ADVISED that each of them is under a
continuing obligation to keep the court informed of any change in his address.
5.
The co-plaintiff’s Motions for Leave to Proceed in Forma Pauperis
(Filing Nos. 10, 11, and 12) are denied without prejudice to reassertion. As set forth
above, this action will not proceed as to any plaintiff unless he advises the court
within 30 days that he wishes to continue as a plaintiff in this group action.
6.
Other pending motions (Filing Nos. 3, 13, 14, and 15) are denied because
they do not comply with group pleading requirements. In other words, all motions
seeking relief on behalf of multiple plaintiffs must be signed by all plaintiffs.
7.
The clerk of the court is directed to send a copy of this order to each of
the following individuals: Andre Pare, Andre Thomas, Anthony Hancock, Brian Obst,
Brian Spotts, Cory Mattly, Dennis Thomas, Eric Berning, Kenneth Capps, Kurt
Brown, Lamar Dunn, Lamont Stuart, Matthew Meyer, Michael Fleming, Orlando
Brewer, Ricky Fletcher, Terrence Thompson, Thad Junge, and William Jordan.
DATED this 16th day of June, 2015.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
to work or directs the user to some other site does not affect the opinion of the court.

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