Battle et al v. Nebraska State Prison Medical Dept. et al

Filing 6

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: The non-lead PlaintiffsJames Daisley and Jefferey Wehrmanshall 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. This is the only way to av oid the obligation to pay a $350 filing fee for this action. Alternatively, if any Plaintiff (including lead Plaintiff Steven Battle) wants to pursue his claims individually in a separate lawsuit, he shall so advise the court in writing, an d 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 dismis sed 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 clerks office is directed to set the following pro se case management deadline in this matter: January 9, 2015: Check for responses from nonlead plaintiffs. Ordered by Senior Judge Joseph F. Bataillon. (Copies mailed to pro se parties)(TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEVEN K. BATTLE, JAMES
DAISLEY, and JEFFEREY
WEHRMAN,

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)
)
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Plaintiffs,
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v.
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NEBRASKA STATE PRISON
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MEDICAL DEPT., DR.
)
FERGUSON, official and individual )
capacities, NEBRASKA DEPT. OF
)
CORRECTIONS, KITCHEN STAFF )
AT N.S.P., and UNIT #6 IN
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OFFICIAL CAPACITY,
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Defendants.
)

8:14CV398

MEMORANDUM
AND ORDER

This matter is before the court for case management. Steven K. Battle is
incarcerated at the Nebraska State Prison in Lincoln, Nebraska. He filed a Complaint
(Filing No. 1) on December 3, 2014, concerning prison conditions at the Nebraska
State Prison. The Complaint was signed by Battle and also two other prisoners,
James Daisley and Jefferey Wehrman.
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. 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.1 The court offers Plaintiffs James Daisley and Jefferey
Wehrman2 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:
•

•
•
•

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 strike3 if the action is dismissed as frivolous or malicious or for
failure to state a claim upon which relief may be granted.

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).
1

The court designates Steven Battle, who delivered the complaint to the court
and whose name is listed first on the pleadings, as the “lead plaintiff” for purposes
of this case because the Complaint and other documents filed to date indicate that he
has taken the initiative to bring this action.
2

As set forth in the Prison Litigation Reform Act (“PRLA”), 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 PRLA.
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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.

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 THEREFORE ORDERED that:
1.
The non-lead Plaintiffs—James Daisley and Jefferey Wehrman—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.4 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 Steven Battle) 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.
As the lead Plaintiff, Steven Battle 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).
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3

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 set the following pro se case
management deadline in this matter: January 9, 2015: Check for responses from nonlead plaintiffs.
DATED this 5th day of December, 2014.
BY THE COURT:

s/ Joseph F. Bataillon
Senior 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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