Dale et al v. Kaemingk et al

Filing 62

Opinion and ORDER denying 22 Appeal. Signed by U.S. District Judge Roberto A. Lange on 11/5/2015. (JLS) Modified dkt txt on 11/5/2015 (JLS).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

JAMES IRVING DALE, BRIAN MICHAEL
HOLZER, MICHAEL EUGENE KOCH,
DEMETRIUS PETRO COLAITES, TREVOR
JOHN ERICKSON, GUY ALLEN BLESI,
KEVIN CHRISTOPHER CRANK, JAMES
EDWARD HAYES, EDWARD EUGENE
DARITY, JOSIA JEREMIAH FUERST,
ROBERT EUGENE BLACKWELL, JEFFERY
JACOB-DANIEL KLINGHAGEN, DENNIS
LOUIS STANISHII,
UNKNOWN MIKE
DURFEE STATE PRISON INMATES,

FILED
NOV 052015

~~

4: 15-CV-041 03-RAL

OPINION AND ORDER DENYING

APPEAL

Plaintiffs,

vs.
DENNIS KAEMINGK, SOUTH DAKOTA
SECRETARY OF CORRECTIONS; IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
ROBERT DOOLEY, WARDEN AT MDSP
AND THE
DIRECTOR OF
PRISON
OPERATIONS FOR THE SOUTH DAKOTA
DOC; IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY; JOSHUA KLIMEK, UNIT
MANAGER AT MDSP; IN HIS INDIVIDUAL
AND OFFICIAL CAPACITY; TAMMY
DEJONG, UNIT COORDINATOR AT MDSP;
IN HER INDIVIDUAL AND OFFICIAL
CAPACITY; SUSAN JACOBS, ASSOCIATE
WARDEN AT MDSP; IN HER INDIVIDUAL
AND OFFICIAL CAPACITY; REBECCA
SCHIEFFER, ASSOCIATE WARDEN AND
THE
ADMINISTRATIVE
REMEDY
COORDINATOR AT MDSP; IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
JENNIFER STANWICK, DEPUTY WARDEN
AT MDSP; IN HER INDIVIDUAL AND
OFFICIAL CAP ACITY; MIC.:.::H::..::A=E=L-=D~O=-Y.:...:L=E:L'~_ _ _ _ _ _ _ _~_ _ __
1

CORRECTIONAL OFFICER, WITH THE

RANK MAJOR, AT MDSP; IN HIS

INDIVIDUAL AND OFFICIAL CAPACITY;

JEREMY
LARSON,
CORRECTIONAL

OFFICER, WITH THE RANK SERGEANT,

AND THE DISCIPLINARY HEARING

OFFICER AT MDSP; IN HIS INDIVIDUAL

AND OFFICIAL CAPACITY;
COREY

TYLER, CORRECTIONAL OFFICER, WITH

THE RANK SERGEANT, AT MDSP; IN HIS

INDIVIDUAL AND OFFICIAL CAPACITY;

MICHAEL
MEYER,
CORRECTIONAL

OFFICER AT MDSP; IN HIS INDIVIDUAL

AND OFFICIAL
CAPACITY;
KELLY

TJEERDSMA, CORRECTIONAL OFFICER,

WITH THE RANK CORPORAL, AT MDSP;

IN THEIR INDIVIDUAL AND OFFICIAL

CAPACITY; LORI DROTZMAN, GENERAL

EDUCATION DIPLOMA TEACHER, WHO

ALSO IS IN CHARGE OF THE LAW

LIBRARY AT MDSP; IN HER INDIVIDUAL

AND OFFICIAL CAPACITY; MICHAEL JOE

HANVEY, PHYSICIANS ASSISTANT AND

HEALTH CARE PROVIDER AT MDSP; IN

HIS
INDIVIDUAL
AND
OFFICIAL

CAPACITY; ANDRA GATES, NURSING

SUPERVISOR
AND
HEALTH
CARE

PROVIDER AT MDSP; IN HER INDIVIDUAL

AND OFFICIAL CAPACITY;
KELLY

SWANSON,
HEALTH
SERVICES

SUPERVISOR AT MDSP; IN THEIR

INDIVIDUAL AND OFFICIAL CAPACITY;

STEPHANIE HAMILTON, NURSE AT MDSP;

IN HER INDIVIDUAL AND OFFICIAL

CAPACITY;
MARY
CARPENTER,

EMPLOYEE OF THE SOUTH DAKOTA

DEPARTMENT OF HEALTH AND ASSISTS

WITH INMATE HEALTH CARE DECISIONS

FOR INMATES INCARCERATED AT MDSP;

IN HER INDIVIDUAL AND OFFICIAL

CAPACITY;
BARRY
SCHROETER,

SUPERVISOR FOR CBM CORRECTIONAL

FOOD SERVICES AT MDSP; IN HIS

INDIVIDUAL AND OFFICIAL CAPACITY;

JENNIFER
BENBOON,
DIETITIAN

EMPLOYED BY CBM CORRECTIONAL

2

FOOD SERVICES; IN HER INDIVIDUAL
AND OFFICIAL CAPACITY;
CBM
CORRECTIONAL
FOOD
SERVICES,
PRIVATE
FOR
PROFIT
COMPANY
CONTRACTED BY THE SOUTH DAKOTA
DOC TO PROVIDE MEALS TO INMATES
INCARCERATED AT MDSP; DELMAR
SONNY WALTERS, ATTORNEY AT LAW
CONTRACTED BY THE SOUTH DAKOTA
DOC TO PROVIDE LEGAL SERVICES TO
INMATES INCARCERATED AT MDSP; IN
HIS
INDIVIDUAL
AND
OFFICIAL
CAPACITY; UNKNOWN DEPARTMENT OF
CORRECTIONS
EMPLOYEES,
CORRECTIONAL OFFICERS EMPLOYED
BY THE SOUTH DAKOTA DOC WHO
WORK
AT
MDSP;
UNKNOWN
OF
CORRECTIONS
DEPARTMENT
HEALTH SERVICES STAFF, HEALTH
SERVICES
DEPARTMENT
STAFF
EMPLOYED BY THE SOUTH DAKOTA
DOC TO PROVIDE HEALTH CARE FOR
INMATES INCARCERATED AT MDSP; AND
UNKNOWN CBM CORRECTIONAL FOOD
SERVICES EMPLOYEES, EMPLOYEES OF
CBM CORRECTIONAL FOOD SERVICES
ATMDSP;
Defendants.

Multiple inmates incarcerated at the Mike Durfree State Prison in Springfield, South
Dakota, filed a joint pro se lawsuit under 42 U.S.C. § 1983. Doc. 1. Plaintiff James Irving Dale
sent a letter to the Court representing that the case is a class action and that he is the lead
plaintiff. Doc. 3. Dale also moved to proceed in forma pauperis (IFP) and requested that he be
allowed to pay a single $350.00 filing fee for the entire group of plaintiffs.

Docs. 3, 4.

Magistrate Judge Veronica L. Duffy ruled that the Prison Litigation Reform Act of 1995
("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (Apr. 26, 1996), allows joint prisoner litigation

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but requires that each prisoner pay the full $350.00 filing fee. Doc. 21. Dale then sent a letter to
this Court seeking reconsideration of Judge Duffy's order that the plaintiffs must pay the filing
fee individually. Doc. 22. Although Dale's letter was docketed as a motion for reconsideration,
this Court interprets the letter as an appeal from Judge Duffy's order.
Ordinarily, plaintiffs proceeding jointly under the Federal Rules of Civil Procedure are
only required to pay a single filing fee. See 28 U.S.C. § 1914(a) (stating in relevant part that
"[t]he clerk of each district court shall require the parties instituting any civil action ... to pay a .
filing fee of $350"); Boriboune v. Berge, 391 F.3d 852, 855 (7th Cir. 2004) (explaining that one
filing fee per suit is the "norm" in civil litigation). When Congress enacted the PLRA, however,
it imposed certain conditions on prisoners proceeding IFP. One of these conditions is found in
28 U.S.C. § 1915(b)(1), which provides in relevant part that "if a prisoner brings a civil action or
files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing
fee." Among those courts that have considered how the PLRA affects the collection of filing
fees in multi-prisoner IFP actions, the majority position is that § 1915(b)(1) requires each
individual prisoner to pay the full filing fee. See Hagan v. Rogers, 570 F.3d 146 (3d Cir. 2009);
Boriboune, 391 F.3d 852; Hubbard v. Haley, 262 F.3d 1194 (11th Cir. 2001).
In Hubbard, for instance, the Eleventh Circuit affirmed the dismissal of a joint prisoner

suit based on its conclusion that § 1915(b)(1) requires every prisoner proceeding IFP to pay the
full filing fee. Hubbard, 262 F.3d at 1197-98. The Eleventh Circuit reasoned that interpreting
§ 1915(b)(1) in this manner was consistent with both the plain language of the PLRA and the

purpose of the statute, which was designed to deter frivolous lawsuits. To the extent that the
PLRA conflicted with Rule 20 of the Federal Rules of Civil Procedure, the Eleventh Circuit held
essentially that the PLRA trumps Rule 20 in prisoner cases. Id. at 1198.

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In Boriboune, the Seventh Circuit held that although prisoners could litigate jointly if
they satisfied Rule 20's criteria, they still were each required to pay a separate filing fee.
Boriboune, 391 F.3d at 855-56. Contrasting the language of § 1914(a)-which implies a per­
case approach to the filing fee by stating that the "parties" must pay a fee-with the language of

§ 1915(b)(I)-which states that "the prisoner shall be required to pay the full amount of a filing
fee"-the Seventh Circuit concluded that § 1915(b)(I) "specifies a per-litigant approach to fees."
Boriboune, 391 F.3d at 855-56. This "per-litigant approach," the Seventh Circuit reasoned, "is a
natural concomitant to a system that makes permission to proceed [IFP] (and the amount and
timing of payments) contingent on certain person-specific findings, including the number of
unsuccessful suits or appeals the prisoner has pursued [IFP], and the balance in the prisoner's
trust account." Id. at 856 (internal citations omitted).
Like the Seventh Circuit in Boriboune, the Third Circuit. in Hagan held that prisoners
proceeding IFP may litigate jointly but must each pay the full filing fee. The Third Circuit
explained that "[rleading the PLRA as requiring each joined IFP litigant to pay a full individual
filing fee by installment, and no more, harmonizes the PLRA with Rule 20, and internally
harmonizes the various provisions of § 1915(b)." Hagan, 570 F.3d at 155-56.
In contrast to the Eleventh, Seventh, and Third Circuits, there is an administrative order
from the then chief judge of the Sixth Circuit stating that "[b ]ecause each prisoner chose to join
in the prosecution of the case, each prisoner should be proportionality liable for any fees and
costs that may be assessed." In re Prison Litig. Reform Act, 105 F.3d 1131, 1137-38 (6th Cir.
1997). District courts within the Sixth Circuit have interpreted the administrative order in In re
Prison Litigation Reform Act as holding that only a single filing fee is required in a multi­
prisoner IFP action. Fox v. Koskinen, No. 2:09-cv-160, 2009 WL 2507405, at *1 (W.D. Mich.

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Aug. 14,2009); Harris v. Gerth, No. 2:08-CV-12374, 2008 WL 3200016, at *1 (E.D. Mich. Aug.
6, 2008). But see, Jones v. Fletcher, No. Civ.A.05CV07-JMH, 2005 WL 1175960, at *6 (RD.
Ky. May 5, 2005) (stating that it is unsettled within the Sixth Circuit whether a single filing fee
should be apportioned among multiple prisoners, noting that In re Prison Litig. Reform Act
failed to consider the purpose of the PLRA and the impact of Rule 20 on the PLRA's
implementation, and requiring each prisoner proceeding IFP to pay the full filing fee).
The conclusion of the Eleventh, Seventh, and Third Circuits that § 1915(b)(1) requires
every prisoner proceeding IFP to pay the full filing fee, even when prisoners have filed a joint
complaint, is persuasive. Although the Eighth Circuit has yet to address this issue, it has given
guidance on statutory interpretation:
While the starting point for interpreting a statute is the language of
the statute itself, federal courts engaging in statutory construction
must interpret the words of the statute in light of the purposes
Congress sought to serve. OUf task, therefore, is to avoid
interpreting a statute in a manner that renders any section of the
statute superfluous or fails to give effect to all of the words used by
Congress.
Westerfeld v. Indepen. Processing, LLC, 621 F.3d 819, 824 (8th Cir. 2010) (alterations and
internal quotation marks omitted) (citations omitted). Interpreting § 1915(b)(1) as specifying a
per-litigant approach to the filing fee comports not only with the text of the statute, but also with
the PLRA's purpose, which was to deter "frivolous prisoner litigation by instituting economic
costs for prisoners wishing to file civil claims." Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997).
Furthermore, interpreting § 1915(b)(1) in this manner gives effect to all of the provisions of
§ 1915(b). See Hagan, 570 F.3d at 155-56 (explaining how reading the PLRA as requiring each

joined IFP prisoner to pay a full individual filing fee and nothing more harmonizes § 1915(b)(l)

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with § 1915(b)(3». For these reasons, this Court agrees with Judge Duffy's order requiring each
plaintiff to pay the full $350.00 filing fee individually.
Accordingly, it is hereby
ORDERED that Dale's Appeal, Doc. 22, is denied.

DATED this 5th day of November, 2015.

BY THE COURT:

UNITED STATES DISTRICT JUDGE

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