Henderson, Titus et al v. Raemisch, Rick et al

Filing 6

Order dismissing complaint. Proposed Amended Complaint and 6 month trust fund account statement due 8/15/08. Complaint must be signed by each petitioner. Petitioners given opportunity to opt out of group lawsuit by 8/15/2008. Petitioner Henderson ha s until 8/15/08 to submit separate complaint and trust fund account statement limited to claims of imminent danger. If Petitioner Henderson joins in proposed amended complaint that does not qualify for 1915(g) exception, he must prepay the $350 filing fee. Signed by Judge Barbara B Crabb on 7/18/08. (elc),(ps)

Henderson et al v. Raemisch et al

Doc. 6

Case: 3:08-cv-00390-bbc

Document #: 6

Filed: 07/22/2008

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - T I T U S HENDERSON, Class Members and all those similarly situated, GARFIELD COOLEY, AL -AM IN AKBAR, BOBBY GATLIN, JOHNATHAN KRUEGER, PATRICK STEARNS, AL EX AN D ER MARTINEZ, JOSEPH GREEN, ISRAEL COLON and JOHN LLANAS ORDER Petitioners, 0 8 - cv -3 9 0 - b b c v. R I C K RAEMISCH, PETER HUIBREGTSE, M A R K HEISE, KEVIN KALLAS, JOHN BETT, K AT H R Y N ANDERSON, HELEN KENNEBECK, T O M GOZINKI, WELCOME ROSE, JOHN & JANE D O ES , MONICA HORNER, GARY BOUGHTON, DAVID GARDNER, VICKI SEBASTIAN, ROBERT H AB L E, SARAH MASON, BRIAN KOOL, LESLIE R O W N , CAPT. JENNIFER GERL, CAPT. GILBERGE, S G T . ROBINSON, THOMAS TAYLOR, MATTHEW S C U L L IO N , DANA ESSER, SGT. COOK, CAPT. SHARPE, C O II WETTER, CO CAYA, JOANI SHANNON-SHARPE, D R . RUBIN-ASCH, DR. STACEY HOEM, TRISHA L A N S IN G , SGT. KUSSMAUL, SGT. STOHELSON, C O HULCE, J. HUIBREGTSE, DANIEL LEFFLER, T R AC EY GERBER and SGT. SICKINGER, R espo nd ents. - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - -

1

Dockets.Justia.com

Case: 3:08-cv-00390-bbc

Document #: 6

Filed: 07/22/2008

Page 2 of 7

T h is is a group action purportedly brought by the petitioners named in the caption of the complaint, each of whom is an inmate at the Wisconsin Secure Program Facility. I say purportedly, because petitioner Titus Henderson states expressly that he has signed the n am es of some of the petitioners to the complaint because prison officials would not allow him to pass documents back and forth between the individual litigants to obtain their signatures. The lack of authentic signatures on the complaint is a problem for at least two im po rtant reasons. First, despite the fact that petitioner Henderson says that he obtained authorization from the individual petitioners to sign their names to legal documents, because it appears from his circumstances that he is not a lawyer or the legal guardian of any of the other litigants, he does not have legal authority to sign their names to a formal complaint. Second, each petitioner is legally responsible for knowing precisely what he is saying in documents he files with the court and he should understand that he will be subject to sanctions under Fed. R. Civ. P. 11 for any pleading, motion or other paper filed over his name if such sanction s are found warranted. He cannot properly oversee his filings if he grants carte blanche authority to another inmate to sign his name to documents he has not seen or read. If it is true that petitioners are not allowed to communicate with one another, then they will have to file separate complaints raising their individual claims. Perhaps petitioners believe that because they have labeled their suit as a class action,

2

Case: 3:08-cv-00390-bbc

Document #: 6

Filed: 07/22/2008

Page 3 of 7

I will appoint a lawyer to represent them and eliminate the problems discussed above. They are wrong. A quick review of the 87-page, 176 paragraph complaint reveals that even if it w as signed properly by each petitioner, it is too long, too vague, and too conclusory to pass m u ster under Fed. R. Civ. P. 8. It is nearly impossible to make out what happened to whom and which of the respondents were involved in what acts of wrongdoing. Without a viable com plaint, I will not consider whether the case is one for which a lawyer should be appointed and a class certified. Moreover, in view of the fact that the conditions of confinement at the W iscon sin Secure Program Facility were thoroughly scrutinized just recently in the context of another class action lawsuit, Jones-El v. Berge, 00-cv-421-bbc, it is highly unlikely that I w i ll certify a class in another multi-claim action challenging conditions at that institution w i th ou t a strong showing that petitioners have more than a negligible chance of success on the merits of their claims. In sum, if petitioners believe that their constitutional rights are being violated, they will have to submit an amended complaint in which they specify what hap pen ed and when, who it happened to, and who did it, all in short and plain statements. This amended complaint must be read by each petitioner listed in the caption of the com plaint and signed by each petitioner individually. In addition, it is this court's obligation to caution each petitioner about the con sequen ces of proceeding in a group complaint and allow them an opportunity to opt out. In Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004), the Court of Appeals for the Seventh

3

Case: 3:08-cv-00390-bbc

Document #: 6

Filed: 07/22/2008

Page 4 of 7

C ircu it observed that there are a number of reasons a prisoner might not want to join in a grou p complaint filed in federal court. First, although petitioners have joined their claims in one complaint, each is bringing an action subject to the 1996 Prison Litigation Reform Act and each must pay the full $350 fee for filing the action. Boriboune, 381 F.3d at 856. In other words, before this court will screen any amended complaint petitioners might submit, each petitioner will have to pay either a full filing fee if he does not qualify to proceed in forma pauperis, or an initial partial p aym en t of the fee calculated from a trust fund account statement for the six-month period im m ediately preceding the filing of the complaint, pursuant to 28 U.S.C. § 1915(a). If an in m ate qualifies to prepay only a portion of the filing fee, he will thereafter be responsible for paying the remainder of the fee in installments pursuant to 28 U.S.C. § 1915(b)(2). Although petitioners' failure to submit the requisite trust fund account statements m ak es it impossible to know whether the majority of the petitioners qualify for indigent status, I am aware that petitioner Henderson does not qualify. He has struck out under § 1915(g). Henderson v. Belfuel, 03-cv-729-bbc (decided Mar. 16, 2004); Henderson v. Kool, 05 -cv-15 7-bb c (Apr. 25, 2005); Henderson v. Brush, 06-cv-12-bbc (decided Mar. 6, 2006); an d Henderson v. Morris, 06-c-407-bbc (decided Nov. 14, 2006). In each of these cases, th is court dismissed at least one claim raised in Henderson's complaints at the screening stage for one of the reasons listed in § 1915(g). That means that petitioner Henderson must

4

Case: 3:08-cv-00390-bbc

Document #: 6

Filed: 07/22/2008

Page 5 of 7

e ith er prepay the full $350 fee for filing an amended complaint in this action or bring a separate action raising only those claims, if there are any, from which it appears that he is personally subjected to imminent danger of serious physical injury, so as to qualify for the exception to § 1915(g)'s bar. Second, if petitioners file an amended complaint and, if I determine when I screen it that any one claim in the action is frivolous, malicious or fails to state a claim upon which relief may be granted, I will record a strike under 28 U.S.C. § 1915(g) against each petitioner in the action. According to the court of appeals, when a prisoner in a group complaint signs the pleading, he attests to the validity of all of the individual claims in the complaint, w hether or not they concern him personally. Therefore, he assumes the risk of incurring a strike if any one claim relating to any other petitioner warrants a strike under § 1915(g). Because petitioners may not have been aware of the consequences of joining their claim s in one lawsuit, or that petitioner Henderson will not be allowed to proceed in the action unless he prepays the $350 fee for filing his portion of the action, I will give each an op po rtunity to withdraw from the suit. If, after considering whether to continue with this law suit jointly, petitioners agree to proceed, they will have to file an amended complaint that com plies with the requirements of Fed. R. Civ. P. 8 that is signed by each of them, together w ith the necessary trust fund account statements.

5

Case: 3:08-cv-00390-bbc

Document #: 6

Filed: 07/22/2008

Page 6 of 7

OR DER IT IS ORDERED that 1. The complaint submitted in this action is DISMISSED because it has not been signed by each of the individual petitioners personally and because it is in violation of Fed. R . Civ. P. 8. 2. Petitioners may have until August 15, 2008, in which to submit a proposed am ended complaint describing clearly and concisely what each respondent did to him to violate his constitutional rights. The proposed amended complaint must be signed by each p etitio n er who wishes to continue to prosecute the action and, with the exception of petition er Henderson, must be accompanied by a trust fund account statement for the sixm on th period beginning approximately February 8, 2008 and ending approximately August 8, 2008. 3. Petitioner Henderson may have until August 15, 2008, in which to submit a separate complaint limited to his claims, if there are any, in which he contends that he is in im m in en t danger of serious physical injury, together with the required trust fund account statem ent. Otherwise, if he plans to join in a proposed amended complaint required to be filed by the other petitioners on or before August 15, 2008, and that complaint contains any on e claim that does not qualify for the exception to § 1915(g), he must prepay the $350 fee fo r filing that action.

6

Case: 3:08-cv-00390-bbc

Document #: 6

Filed: 07/22/2008

Page 7 of 7

4. Any petitioner who fails to respond to this order by August 15, 2008, or who advises the court that he does not want to remain a party to the complaint, will be co n sid ered to have opted out of the joint lawsuit. He will be dismissed from the lawsuit and w ill not be charged a filing fee. 5. If, by August 15, 2008, petitioners do not file a proposed amended complaint that com plies with Rule 8 and is signed in compliance with Rule 11, this case will be D ISM ISSED in its entirety. E n tered this 18 t h day of July, 2008. B Y THE COURT:

/s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

7