Markovic et al v. State of Wisconsin Department of Corrections et al

Filing 12

ORDER denying as unnecessary 10 Motion to Supplement. Each plaintiff to advise by 3/6/09 whether they intend to prosecute this action. Signed by Chief Judge Barbara B Crabb on 2/19/2009. (llj),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------DRAZEN MARKOVIC and D A R IU S WALKER, individually and on behalf of all others sim ilarly situated, P la i n t i f f s , v. D EPA R TM E N T OF CORRECTIONS OF THE S T AT E OF WISCONSIN, RICHARD F. RAEMISCH, JOHN BETT, LARRY JENKINS, MICHAEL REIGH, JAC K IE KUHN, J.L. MARCUS INC., U N IO N SUPPLY INC., ACCESS SECUREPAK INC. an d WALKENHORST'S INC., D efendan ts. --------------------------------------------Originally, plaintiffs Drazen Markovic and Darius Walker filed their complaint in the C ircuit Court for Dane County, Wisconsin, alleging that certain contracts between the W isco nsin Department of Corrections and four vendors for inmate personal property items violate price discrimination and antitrust statutes. On January 23, 2009, defendants ORDER 09-cv-42-bbc

rem oved the action to this court. In this court's January 28, 2009 order, I granted the m o tio n of defendants Reigh, Kuhn, Department of Corrections, Raemisch, Bett and Jenkins

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for screening of plaintiffs' complaint pursuant to 28 U.S.C. § 1915A. Now, before such screen in g could be accomplished, plaintiffs have filed a motion to supplement the complaint w ith a chart showing the difference in price of various musical instruments between the prison vendors and other outside sources from which prisoners are not allowed to order. T his motion will be denied because it is unnecessary for plaintiffs to present evidence at this po int in the proceedings. If their case survives screening, they will have a chance to submit evid en ce in support of their claims in connection with a motion for summary judgment or at trial. There is another issue to resolve before this court screens the complaint. It is n ecessary to caution plaintiffs about the consequences of proceeding in a group complaint and allow them an opportunity to opt out. In Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2 0 0 4), the Court of Appeals for the Seventh Circuit observed that there are a number of reason s a prisoner might not want to join in a group complaint filed in federal court. For instance, if I conclude when I screen plaintiffs' complaint 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 plaintiff named in the caption o f 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 heth er or not they concern him personally. In addition, each plaintiff will be held legally

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respo nsible for knowing precisely what is being filed in the case on his behalf. Each plaintiff w ill be subject to sanctions under Fed. R. Civ. P. 11 for any pleading, motion or other paper filed over his name if such sanctions are found warranted in any aspect of the case. B ecause plaintiffs may not have been aware of the consequences of joining their claim s in one lawsuit, I will give each a brief opportunity to withdraw from the suit. After the court receives responses from plaintiffs, I will screen the complaint pursuant to 28 U.S.C. § 1915A.

ORDER IT IS ORDERED that: 1. Plaintiffs' motion to supplement the complaint (dkt. #10) is DENIED as

u n n e ce ss ar y . 2. Each plaintiff may have until March 6, 2009, in which to advise the court whether he wishes to prosecute this action. 3. Any plaintiff who fails to respond to this order by March 6, 2009, or who advises th e court that he does not want to remain a party to the complaint, will be considered to

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have opted out of the joint lawsuit. Entered this 19t h day of February, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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