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Trainor v. Gebke

United States District Court, S.D. Illinois

July 19, 2017

COREY TRAINOR, # B-51552, MICHAEL TURNER, # K-51650, TERRANCE GARRETT, # N-92748, JAMES GROLEAU, # R-52557, DYLAN METZEL, # B-56652, and KEVEREZ TANZY, # B-76690, Plaintiffs,
v.
LARRY GEBKE, ROBERT C. MUELLER, MONICA CHRISTIANSON, and OFFICER ROVENSTEIN, Defendants.

          MEMORANDUM AND ORDER

          DAVID R. HERNDON, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court for case management. On June 14, 2017, Plaintiff Trainor filed the instant action naming himself and 5 other individuals as Plaintiffs, all of whom are incarcerated at Centralia Correctional Center (“Centralia”). Only Trainor signed the Complaint, however. (Doc. 1, p. 17). The Complaint alleges that Defendants have denied each Plaintiff permission to receive certain publications, in violation of the First Amendment.

         Four of the 6 Plaintiffs have filed a motion to proceed in forma pauperis (“IFP”) (Docs. 2, 6, 8, & 10). The Complaint indicates that Plaintiffs wish to seek class certification for this action, however, no motion to this effect has been filed.[1](Doc. 1, pp. 14-16). Before the Court addresses the need for additional signatures on the Complaint or considers the pending motions, it is necessary to deal with some preliminary matters related to the attempt to jointly file this case as a group action including multiple Plaintiffs.

         Group Litigation by Multiple Prisoners

         Plaintiffs may bring their claims jointly in a single lawsuit if they so desire. However, the Court must admonish them as to the consequences of proceeding in this manner including their filing fee obligations, and give them the opportunity to withdraw from the case or sever their claims into individual actions.

         In Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004), the court addressed the difficulties in administering group prisoner complaints. 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. 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.” Nonetheless, a district court may turn to other civil rules to manage a multi-plaintiff case. If appropriate, claims may be severed pursuant to Rule 20(b), pretrial orders may be issued providing for a logical sequence of decision pursuant to Rule 16, parties improperly joined may be dropped pursuant to Rule 21, and separate trials may be ordered pursuant to Rule 42(b). Boriboune, 391 F.3d at 854.

         In reconciling the Prisoner Litigation Reform Act with Rule 20, the Seventh 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. Id. In other words, each prisoner in a joint action is required to pay a full civil filing fee, just as if he had filed the suit individually.

         The Circuit 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 parties pursuant to Federal Rule of Civil Procedure 5. This means that if there are six plaintiffs, the plaintiffs' postage and copying costs of filing motions, briefs or other papers in the case will be six 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 Federal Rule of Civil Procedure 11.” Boriboune, 391 F.3d at 854-55. According to the Seventh Circuit, a prisoner litigating jointly assumes those risks for all of the claims in the group complaint, whether or not they concern him personally. Furthermore, if the 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, the plaintiffs will be liable for another full filing fee for each new case. See George v. Smith, 507 F.3d 605 (7th Cir. 2007). The Seventh Circuit in Owens v. Godinez, 860 F.3d 434 (7th Cir. 2017), recently issued strong encouragement to district courts to enforce the directive of George.

         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.” Boriboune, 391 F.3d at 856. Therefore, in keeping with this suggestion, the Court offers all of the Plaintiffs, other than Plaintiff Trainor, whom it designates as the “lead” Plaintiff[2] in this case, 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 Federal Rule of Civil Procedure 11 if such sanctions are found warranted in any aspect of the case.
• He will incur a strike if the action is dismissed as frivolous or malicious or for failure to state a claim upon ...

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