Hunter et al v. Nebraska Department of Corrections et al

Filing 5

MEMORANDUM AND ORDER that each plaintiff 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 plaintiff advises the court that he does not wish to participate in th e action, 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 for this action. Alternatively, if any plaintiff wants to pursue his claims indivi dually 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 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 $400.00 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 plaintiffs. Fa ilure to submit a properly completed IFP motion does not relieve a plaintiff 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 plaintiff who simply does not r espond 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 Procedu re 41(b). 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 plaintiffs are further ADVISED that each of them is under a continuing obligation to keep the court informed of any change in his address. Ordered by Judge John M. Gerrard. (Copy mailed to pro se plaintiffs with Form AO240) (KMG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MATTHEW HUNTER, ADAM
KOEHLER, SHADOE SUKSTORF,
ROBERT GUMPERT, STEVE
EBERT, ORLANDO BREWER, and
JOHN BRIDGEFORD,
Plaintiffs,
v.
NEBRASKA DEPARTMENT OF
CORRECTIONS, FRED BRITTON,
and SCOT FRAKES,
Defendants.

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4:15CV3063

MEMORANDUM
AND ORDER

This matter is before the court for case management. Plaintiffs filed a
Complaint (Filing No. 1) on June 4, 2015, concerning prison conditions at the
Diagnostic and Evaluation Center in Lincoln, Nebraska. Plaintiffs include Shadoe
Sukstorf, Matthew Hunter, Adam Koehler, Robert Gumpert, Orlando Brewer, and
John Bridgeford. Steve Ebert is listed in the caption of the complaint but he did not
sign the Complaint.1
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.

1

The court’s normal practice in cases filed by multiple prisoner-plaintiffs is to
identify a “lead plaintiff.” In this case, it is unclear which of the plaintiffs took the
initiative to bring this action. Therefore, the court declines to identify a lead plaintiff
at this time.

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.2 The court offers the plaintiffs an opportunity to withdraw from
this litigation before the case progresses further. Each of the 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.3
2

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).
3

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 plaintiff 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 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. This is the only
way to avoid the obligation to pay a filing fee for this action.
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 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

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
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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
plaintiffs.
Failure to submit a properly completed IFP motion does not relieve a plaintiff
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 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.
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.

assessed to non-IFP plaintiffs.
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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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