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Purifoy v. Kelley

March 4, 2009


The opinion of the court was delivered by: Herndon, Chief Judge


Plaintiffs are all involuntarily committed to Chester Mental Health Center ("CMHC"), having been found unfit to stand trial. Although Plaintiffs have not yet been convicted, they are considered "prisoners" subject to the Prison Litigation Reform Act.

The word is a defined term: "As used in this section, the term 'prisoner' means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 28 U.S.C. § 1915(h). Identical definitions appear in 28 U.S.C. § 1915A(c) and 42 U.S.C. § 1997e(h).... Pretrial detainees are "prisoners" for purposes of the PLRA because they are in custody while "accused of... violations of criminal law".

Kalinowski v. Bond, 358 F.3d 978, 978-79 (7th Cir. 2004).


Plaintiffs have not paid the $350 filing fee for this action, and only Purifoy has filed an individual motion to proceed in forma pauperis (Doc. 7). This motion is not accompanied by a print-out of his trust fund statement as required by 28 U.S.C. § 1915(a), nor is the one-page in forma pauperis motion filed by all three Plaintiffs (Doc. 2). Accordingly, the motions for leave to proceed in forma pauperis are DENIED without prejudice. If Plaintiffs wish to proceed in forma pauperis in this action, each must file a separate motion, accompanied by a certified copy of his prison trust fund account statement for the six-month period immediately preceding the filing of the complaint an affidavit that includes a statement of his assets as required by § 1915(a)(1). It follows, therefore, that all three motions for appointment of counsel (Docs. 5, 6, 8) are DENIED without prejudice.


Plaintiffs also seek certification of this action as a class action, pursuant to Rule 23 of the Federal Rules of Civil Procedure (Doc. 3). "The Federal Rules of Civil Procedure ('the Rules') provide the federal district courts with 'broad discretion' to determine whether certification of a class-action lawsuit is appropriate." Keele v. Wexler, 149 F.3d 589, 592 (7th Cir. 1998). Under the Rules, a determination of class certification requires a two-step analysis. First, the named plaintiff must demonstrate that his action satisfies the four threshold requirements of Rule 23(a):

(1) numerosity (the class must be so large 'that joinder of all members is impracticable'); (2) commonality (there must exist 'questions of law or fact common to the class'); (3) typicality (named parties' claims or defenses 'are typical... of the class'); and (4) adequacy of representation (the representative must be able to 'fairly and adequately protect the interests of the class').

Id. at 594; Fed.R.Civ.P. 23(a). The brief motion before the Court simply recites these standards without presenting any factual basis for the Court to make such a determination. Accordingly, this motion is DENIED.


The Seventh Circuit Court of Appeals has held that district courts are required to accept joint complaints filed by multiple prisoners if the criteria of permissive joinder under FED.R.CIV.P. 20 are satisfied. However, the Circuit held that each prisoner in the joint action is required to pay a full filing fee. Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004).

In reaching their conclusion, the Circuit discounted the trial court's concerns about the predatory leanings of some inmates to include other inmates in litigation for their personal gain. The Circuit noted that throughout the history of prisoner litigation, even before enactment of the Prison Litigation Reform Act, "jailhouse lawyers surely overstepped their roles on occasion." Boriboune, 391 F.3d at 854. Also, the Circuit addressed the difficulties in administering group prisoner complaints, stating that "the rules [or civil procedure] provide palliatives," such as severance of the claims pursuant to FED.R.CIV.P. 20(b), pretrial orders providing for a logical sequence of decision pursuant to Rule 16, orders dropping parties improperly joined pursuant to Rule 21, and orders directing separate trials pursuant to Rule 42(b). Boriboune, 391 F.3d at 854.

Next, the Circuit focused on the question whether joint prisoner litigation undermines the system of financial incentives created by the Prison Litigation Reform Act, holding that Prison Litigation Reform Act did not repeal Rule 20 by implication. Rule 20 permits plaintiffs to join together in one lawsuit if they assert claims "arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to these persons will arise in the action." According to the Circuit, repeal by implication occurs only when the newer rule "is logically incompatible with the older one." Id. In concluding that no irreconcilable conflict exists between Rule 20 and the Act, the Circuit determined that joint litigation does not ...

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