IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
July 8, 2009
LENNIL L. JOHNSON, ET AL., PLAINTIFFS,
MEARL JUSTUS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Murphy, District Judge
MEMORANDUM AND ORDER
This action was filed on June 8, 2009, by seven individual plaintiffs: Lennil L. Johnson, Demarco McDonald, James Carter, Larry Stevenson, Alonzo Hoffman, Vernard Harris, and Deandrell Davis. Plaintiffs currently are held in the St. Clair County Jail; they jointly assert various violations of their constitutional rights.
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 Federal Rule of Civil Procedure 20 are satisfied. Each prisoner is required, however, to pay a full filing fee. Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004).
In Boriboune, the Seventh Circuit discounted the trial court's concerns about the predatory leanings of some inmates to include other inmates in litigation for their personal gain. Judge Easterbrook 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 Court addressed the difficulties in administering group prisoner complaints, stating that "the rules [of civil procedure] provide palliatives," such as severance of the claims pursuant to Rule 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 Seventh 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 Seventh 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 relieve any prisoner of the duties imposed upon him under the Act, including the duty to pay the full amount of the filing fees, either in installments or in full if the circumstances require it.*fn1
In Boriboune, the Court also noted that there are at least two other reasons a prisoner may wish to avoid group litigation. First, group litigation creates countervailing costs. Each submission to the Court must be served on every other plaintiff and the opposing party pursuant to Rule 5 of the Federal Rules of Civil Procedure. This means that if there are five plaintiffs, the postage and copying costs of filing motions, briefs, or other papers in the case will be five times greater than if there were a single plaintiff.
Second, a prisoner litigating on his own behalf takes the risk that "one or more of his claims may be deemed sanctionable under Fed.R.Civ.P. 11, or may count toward the limit of three weak forma pauperis claims allowed by § 1915(g)." Boriboune, 391 F.3d at 854-55. A prisoner litigating jointly assumes those risks for all of the claims in the group complaint, whether or not they concern him personally. In fact, the Seventh Circuit recently clarified that courts may record strikes against prisoners for each claim in a complaint that is dismissed as frivolous or malicious or fails to state a claim upon which relief may be granted. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Thus, to clarify, the Seventh Circuit now interprets § 1915(g) as requiring district courts to issue strikes for legally meritless claims within an action. Furthermore, if the district court finds that the complaint contains unrelated claims against unrelated defendants, those unrelated claims may be severed into one or more new cases. If that severance of claims occurs, each plaintiff will be liable for another full filing fee for each new case. Plaintiffs may wish to take into account this ruling in determining whether to assume the risks of group litigation in the federal courts of the Seventh Circuit.
Because not every prisoner is likely to be aware of the potential negative consequences of joining group litigation in federal courts, the Seventh Circuit suggested in Boriboune that district courts alert prisoners to the individual payment requirement, as well as the other risks prisoner pro se litigants face in joint pro se litigation, and "give them an opportunity to drop out." Id. at 856. Therefore, in keeping with this suggestion, the Court offers each Plaintiff an opportunity to withdraw from this litigation before the case progresses further. Each Plaintiff may wish to take into consideration the following points in making his decision:
* He will be held legally responsible for knowing precisely what is being filed in the case on his behalf.
* He will be subject to sanctions under Rule 11 of the Federal Rules of Civil Procedure if such sanctions are found warranted in any aspect of the case.
* He will incur a strike if any claim contained in the action is dismissed as frivolous or malicious or for failure to state a claim upon which relief may be granted.
* In screening the complaint, the Court will consider whether unrelated claims should be severed and, if it decides severance is appropriate, he will be required to prosecute his claims in a separate action and pay a separate filing fee for each new action.
* Whether the action is dismissed, severed, or allowed to proceed as a group complaint, he will be required to pay a full filing fee, either in installments or in full, depending on whether he qualifies for indigent status under §§ 1915(b) or (g).
IT IS HEREBY ORDERED that each Plaintiff shall have until July 31, 2009, in which to advise the Court whether he wishes the Court to consider him a plaintiff in this group action. If, by July 31, 2009, any Plaintiff advises the Court that he does not wish to participate in the action, he will be dismissed from the lawsuit and will not be charged a filing fee.
IT IS FURTHER ORDERED that any Plaintiff who does not respond to this order by July 31, 2009, will be considered a plaintiff in this action. At that time, the Court will proceed as described above, and each Plaintiff still a party to this action shall be held accountable for all consequences explained above.
Each Plaintiff is ADVISED of his continuing obligation to keep the Clerk informed of any change in his whereabouts during the pendency of this action. This notification shall be done in writing and not later than seven (7) days after a transfer or other change in address occurs. Failure to provide such notice may result in dismissal of this action as to that Plaintiff. See FED.R.CIV.P. 41(b).
IT IS SO ORDERED.
G. Patrick Murphy United States District Judge