Petersen et al v. Kaemingk et al

Filing 12

ORDER granting 4 Motion for Leave to Proceed in forma pauperis; denying as moot 8 Motion for Leave to Proceed in forma pauperis; granting 11 Motion to Dismiss Party. Party Nancy Akin terminated. Signed by U.S. District Judge Roberto A. Lange on 12/13/16. (SKK)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

DEC 1 3 2016
1

CENTRAL DIVISION

^CLERK

MARY E. PETERSEN, MELISSA BOYER,
VENESA JOVEN, NANCY AKIN,
3:16-CV-03039-RAL

Plaintiffs,
vs.

DENNIS KAEMINGK, BRENDA HYDE,
STEVE ALLARD, WILLIAM SCHIED,
SCOTT MEES, JON DEGREEF,TONY

HILLMER, CALVIN GOURNEAU, COLBY
BUCKLES, WENDY TRAUTMAN, MARIA
KELLY, ALEXANDRA AYRES, JESSICA
UCKER, LARRY KINDALL, DARREN

BERG, PAMELA DOKTER, JENNINGS
NEW BOLT,
Defendants.

Four inmates incarcerated at the South Dakota Women's Prison in

Pierre, South Dakota, filed a joint prose civil rights lawsuit pursuant to 42 ,
U.S.C. § 1983. Only two of four plaintiffs filed motions to proceed in forma

pauperis and provided prisoner trust account reports.
Due to policy considerations set forth in the Prison Litigation Reform Act

(PLRA),joint prisoner litigation is generally disfavored. See Hubbard v. Haley,
262 F.3d 1194 (11th Cir. 2001)(holding that the PLRA preempted Rule 20 so

as to prevent IFP prisoner litigants from litigating jointly). A few circuits have,
however, permitted joint prisoner litigation. For example, the Third and

Seventh Circuits permit joint prisoner litigation, but they still require each

prisoner litigant to separately pay the entire $350 filing fee. See Hagan v.
Rogers, 570 F.3d 146, 155-56 (3d Cir. 2009); Boriboune v. Berge, 391 F.3d
852, 856 (7th Cir. 2004).

The Eighth Circuit has yet to consider how joint prisoner litigation

should be handled under the PLRA. Nonetheless, after reviewing the reasoning
of other circuits and considering the policy objectives underlying the PLRA,
this Court joins with the well-reasoned opinions of the Third and Seventh

Circuits holding that, although joint prison litigation will be permitted, each

prisoner litigant will be individually responsible for the full $350 filing fee.
Before this case is screened pursuant to 28 U.S.C. § 1915A, plaintiffs
are given this warning and opportunity to withdraw from the lawsuit. Joint

filing carries with it the risk of being held accountable for sanctions pursuant
to^Rule 11 of the Federal Rules of Civil Procedure, and the risk of receiving a

strike under 28 U.S.C. § 1915 for the co-plaintiffs' claims. Accordingly, the
following notice is given:

1. You will be legally responsible for knowing precisely what is
being filed in the case on your behalf and the representations
made in those filings. Federal Rule of Civil Procedure 11(c) provides
that sanctions can be imposed for violating Rule 11(b).
2. You will incur a strike if the action is dismissed as frivolous,
malicious, or for failure to state a claim upon which relief can be
granted. Pursuant to 28 U.S.C. § 1915(g), a prisoner who has had
three cases dismissed (three strikes) for the reasons mentioned
above cannot bring a civil action or appeal unless the prisoner is in
imminent danger of serious physical injury.

3. Regardless whether this case is dismissed or allowed to proceed
after screening, you will be required to pay the filing fee, either in

installments or in full, depending on whether you qualify for
indigent status. If you do not qualify for indigent status, your
claims may be severed from the case and you will then be required
to pay the entire $350 filing fee before your case will proceed.
4. You will be individually responsible for the full $350 filing fee,
even if you are granted in forma pauperis status. If you are granted
in forma pauperis status, the institution having custody of you will
be directed that whenever the amount in your trust account,

exceeds $10, monthly payments that equal 20 percent of the funds
credited to the account the preceding month will be forwarded to
the United States District Court Clerk's office pursuant to 28

U.S.C. § 1915(b)(2), until the $350 filing fee is paid in full.
See Boriboune, 391 F.3d at 856 (recommending that district courts warn

prisoners of the potential negative consequences ofjoint filing in federal court
and give them an opportunity to withdraw from the lawsuit).
Plaintiff Mary E. Petersen moved for leave to proceed in forma pauperis
and also paid her full filing fee. Doc. 4; Doc. 10. Plaintiff Nancy Akin moved for
leave to proceed in forma pauperis, but now moves to dismiss herself from the
case. Her motion is granted. Doc. 8; Doc. 11.
Accordingly, it is
ORDERED that Melissa Boyer and Venessa Joven shall advise the Court

whether they wish to continue as plaintiffs in this case by January 2, 2017. If

either opts not to continue as a plaintiff in this case, or if they do not respond
to this order, then they will be dismissed as plaintiffs in this case.

IT IS FURTHER ORDERED that if Boyer or Joven opts to proceed, they
must file a motion to proceed in forma pauperis and a prison trust account
report or pay the full filing fee.

IT IS FURTHER ORDERED that this case will be screened pursuant to
28 U.S.C. § 19ISA after January 2, 2017.
IT IS FURTHER ORDERED that Mary E. Petersen's motion for leave to

proceed in forma pauperis (Doc. 4) is granted.

IT IS FURTHER ORDERED Nancy Akin's motion to dismiss (Doc. 11) is
granted. She is dismissed from this case.

IT IS FURTHER ORDERED that Nancy Akin's motion for leave to
proceed in forma pauperis (Doc. 8) is denied as moot.
Dated December

2015.

BY THE COURT:

ROBERTO A. LANGE

UNITED STATES DISTRICT JUDGE