Sexton et al v. Kenney et al

Filing 86

MEMORANDUM AND ORDER that the following plaintiffs are dismissed from this action without prejudice: Alisa Parde, Erica Cochran, FrancesBeaver, Sydney Decapiano, Ashley Griffith, Tamara Evans, ElisaSeastrong, Christina Glass, and Sharon Turnell. Pard e, Beaver, Decapiano, Griffith, Glass, Turnell, Cochran, Evans, and Seastrong will not be required to pay the filing fee for this action. The financial officer in the clerk's office is directed to refund any filing fee payments made by Parde, Be aver, Decapiano, Griffith, Glass, Turnell, Cochran, Evans, or Seastrong. The motions to dismiss filed by Parde, Beaver, Decapiano, Griffith, Glass, and Turnell are granted (Filing Nos. 73 , 74 , 75 , 76 , 77 , 78 , 81 , 83 , and 85 ). The Co urt offers Caroline Richardson an opportunity to withdraw from this litigation before the case progresses further. Caroline Richardson shall have 30 days from the date of entry of this order in which to advise the Court whether she wishes to continue as a plaintiff in this group action. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se parties, Financial and Tamra Glynn, Inmate Accounting Supervisor, Nebraska Department of Correctional Services, Central Office Accounting, PO Box 94661, Lincoln, NE 68508.) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LISA K. SEXTON, ALISA E.
)
PARDE, CAROLINE RICHARDSON,
)
ERICA J. COCHRAN, FRANCES
)
BEAVER, SYDNEY DECAFIANO,
)
ASHLEY GRIFFITH, TAMARA EVANS,)
ELISA SEASTRONG, CHRISTINA
)
GLASS, and SHARON TURNELL,
)
)
Plaintiffs,
)
)
v.
)
)
MICHAEL KENNEY, et al.,
)
)
Defendants.
)
______________________________)

8:14CV164

MEMORANDUM AND ORDER

This matter is before the Court for case management.
This action was filed by 24 prisoner plaintiffs on May 27, 2014.
This case represents the enormous practical difficulties involved
in progressing a case brought by multiple pro se prisoners.
Specifically, of the 24 prisoner plaintiffs who signed the
complaint, only one -- Lisa Sexton, the “lead plaintiff”1 -- has
paid the initial partial filing fee and indicated a willingness
to prosecute the case.

1

The Court designates plaintiff Lisa Sexton as the lead
plaintiff for purposes of this Memorandum and Order because the
complaint (Filing No. 1) and other motions filed to date indicate
that she has taken the initiative to bring this action. Sexton
delivered the complaint to the Court and her name is listed first
on the pleadings.

Because not every prisoner is likely to be aware of the
potential negative consequences of joining group litigation in
federal courts, it will be the general practice of the
undersigned judge to alert plaintiffs to the individual payment
requirement, as well as other risks they face in joint pro se
litigation.

In addition, it will be the general practice of the

undersigned judge to offer the non-lead plaintiffs an opportunity
to withdraw from the litigation before the case progresses
further.

In keeping with this practice,
IT IS ORDERED:
1.

The following plaintiffs are dismissed from this

action without prejudice:

Alisa Parde, Erica Cochran, Frances

Beaver, Sydney Decapiano, Ashley Griffith, Tamara Evans, Elisa
Seastrong, Christina Glass, and Sharon Turnell.

Parde, Beaver,

Decapiano, Griffith, Glass, and Turnell asked to be dismissed
from this action.

Cochran, Evans, and Seastrong failed to pay

the initial partial filing fee and failed to show cause for their
failure to do so.
2.

Parde, Beaver, Decapiano, Griffith, Glass, Turnell,

Cochran, Evans, and Seastrong will not be required to pay the
filing fee for this action.
3.

The financial officer in the clerk’s office is

directed to refund any filing fee payments made by Parde, Beaver,

Decapiano, Griffith, Glass, Turnell, Cochran, Evans, or
Seastrong.
4.

The motions to dismiss filed by Parde, Beaver,

Decapiano, Griffith, Glass, and Turnell are granted (Filing Nos.
73, 74, 75, 76, 77, 78, 81, 83, and 85).
5.

The Court offers Caroline Richardson an opportunity

to withdraw from this litigation before the case progresses
further.

She may wish to take the following points into

consideration when making her decision:
•

She 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.

•

She will be held legally responsible for knowing
precisely what is being filed in the case on her
behalf.

•

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.

•

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, she will be required
to prosecute her claims in a separate action and pay a
separate filing fee for each new action.
6.

Caroline Richardson shall have 30 days from the

date of entry of this order in which to advise the Court whether
she wishes to continue as a plaintiff in this group action.

If,

by that deadline, Richardson advises the Court that she does not
wish to participate in the action, she will be dismissed from the
lawsuit, her initial partial filing fee will be refunded, and she
will not be charged a filing fee for this action.2

This is the

only way to avoid the obligation to pay a filing fee for this
action.
7.

Alternatively, if Caroline Richardson wants to

pursue her claims individually in a separate lawsuit, she shall
so advise the Court in writing, and her claims shall be severed
into a new action where a filing fee will be assessed.
8.

If Caroline Richardson simply does not respond to

this Memorandum and Order within 30 days, she will be obligated
to pay the full filing fee and will also be dismissed from this

2

As the lead plaintiff, Sexton may choose to voluntarily
dismiss or sever her claims, but may not escape her 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).

action for want of prosecution and/or for failure to comply with
a court order under Federal Rule of Civil Procedure 41(b).
DATED this 29th day of October, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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