Butler et al v. Lancaster County Dept of Corrections et al

Filing 37

MEMORANDUM AND ORDER -The non-lead plaintiffs -- Michael Evans, Bao Nguyen, Jesse Dyer, Brent Abbink, and Miguel Alvarez -- shall have 30 days from the date of entry of this order in which to advise the Court whether he wishes to continue as a plaint iff in this group action. If, by that deadline, any non-lead 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 $350 filing fee for this action. Alternatively, if any plaintiff (including lead plaintiff Surgio Butler) wants to pursue his claims individually in a separate lawsuit, he shall so advise the Court in wr iting, and his claims shall be severed into a new action where a filing fee will be assessed. Any non-lead 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). 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). Plaintiffs are further ADVISED that each of them is under a continuing obligation to keep the Court informed of any change in his address. The clerk's office i s directed to update its records to reflect that the correct spelling of plaintiff Surgio Butler's name. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 12/1/2014: Check for responses from non-lead plaintiffs) Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SERGIO BUTLER, MICHAEL EVANS,
BAO NGUYEN, JESSE DYER,
BRENT ABBINK, and MIGUEL
ALVAREZ,
Plaintiffs,
v.
LANCASTER COUNTY DEPT OF
CORRECTIONS and LANCASTER
COUNTY,
Defendants.

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8:14CV306

MEMORANDUM AND ORDER

This matter is before the Court for case management.
Surgio1 Butler is incarcerated at the Lancaster County Jail in
Lincoln, Nebraska.

He filed a complaint (Filing No. 1) on

October 6, 2014, concerning prison conditions at the Lancaster
County Jail.

The complaint was signed by Butler and also five

other prisoners, Michael Evans, Bao Nguyen, Jesse Dyer, Brent
Abbink, and Miguel Alvarez.
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.

1

The Court will direct the clerk’s office to update its
records to reflect that the correct spelling of plaintiff’s name
is Surgio Butler, not Sergio Butler. (See inmate trust account
statement at Filing No. 6.)

However, pursuant to the Prison Litigation Reform Act, each
prisoner in a joint action must pay the full civil filing fee.
See 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
federal courts, this Court will alert plaintiffs to the
individual payment requirement, as well as other risks they face
in joint pro se litigation.2

The Court offers plaintiffs Michael

Evans, Bao Nguyen, Jesse Dyer, Brent Abbink, and Miguel Alvarez3
an opportunity to withdraw from this litigation before the case
progresses further.

Each of these co-plaintiffs may wish to take

the following points into consideration when making his decision:

2

This notice is modeled after the district court’s order in
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).
3

The Court designates Surgio Butler, who delivered the
complaint to the Court and whose name is listed first on the
pleadings, as the “lead plaintiff” for purposes of this order
because the complaint and other documents filed to date indicate
that he has taken the initiative to bring this action.
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•

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 strike4 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, he will be required to prosecute
his claims in a separate action and pay a separate filing
fee for each new action.

4

As set forth in the Prison Litigation Reform Act (“PLRA”),
a prisoner cannot bring a civil action in forma pauperis if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action 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. 28 U.S.C. §1915(g). Such dismissals constitute
“strikes” under the PLRA.
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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

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.
Plaintiffs are WARNED that future group motions or pleadings that
do not comply with this requirement shall be stricken pursuant to
Rule 11(a).
IT IS ORDERED:
1.

The non-lead plaintiffs -- Michael Evans, Bao

Nguyen, Jesse Dyer, Brent Abbink, and Miguel Alvarez -- shall
have 30 days from the date of entry of this order in which to
advise the Court whether he wishes to continue as a plaintiff in
this group action.

If, by that deadline, any non-lead 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.5

This is the only way to

avoid the obligation to pay a $350 filing fee for this action.

5

As the lead plaintiff, Surgio Butler may choose to
voluntarily dismiss or sever his claims, but 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).
-4-

Alternatively, if any plaintiff (including lead
plaintiff Surgio Butler) wants to pursue his claims individually
in a separate lawsuit, he shall so advise the Court in writing,
and his claims shall be severed into a new action where a filing
fee will be assessed.
2.

Any non-lead 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.

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.

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 clerk’s office is directed to update its

records to reflect that the correct spelling of plaintiff Surgio
Butler’s name.

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6.

The clerk’s office is directed to set the

following pro se case management deadline in this matter:
December 1, 2014:

Check for responses from non-lead plaintiffs.

DATED this 29th day of October, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

* 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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