JEREMY K. SMITH, SERGIO SALTER, DAVID ROBERTSON, DEVELL CURRY, LISA NEIPERT, BAYLEIGH HARTMAN, MICHELLE WILLIAMS and PATRICIA HOXSEY v. BOND COUNTY JAIL, and JEFF BROWN
Case No. 17-cv-006-JPG
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
February 2, 2017
GILBERT, District Judge:
This matter is before the Court for case management. The Complaint (Doc. 1) was filed by 8 individuals who are in custody at Bond County Jail (Jail) located in Greenville, Illinois. Together, they filed a complaint that sets forth claims against the Sheriff of Bond County Illinois, Jeff Brown, and the Jail itself. (Doc. 1, p. 1). They claim that there is black mold in the bullpen of the Jail as well as in the living areas of the female plaintiffs. (Doc. 1, p. 3). They also claim that living in black mold is dangerous to their lives and that they have symptoms of sneezing, coughing, headaches, nausea, and severe stomach cramps and diarrhea. (Doc. 1, p. 3).
All 8 plaintiffs named in the case caption signed the Complaint. (Doc. 1, p. 4). All of the plaintiffs have also signed what appears to be Plaintiff Smiths motion seeking leave to proceed in forma pauperis (IFP) (Doc. 2). None of the plaintiffs aside from Plaintiff Smith have filed an IFP motion, nor have they paid their respective filing fees. Under the circumstances, the
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 Seventh Circuit 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
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
Second, a prisoner litigating on his own behalf takes the risk that one or more of his claims may be deemed sanctionable under
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 all of the plaintiffs, other than Plaintiff Smith, whom it designates as the lead plaintiff1 in this case, an opportunity to withdraw from this litigation before the case progresses further. Each plaintiff may wish to take
- He or she will be held legally responsible for knowing precisely what is being filed in the case on his or her behalf.
- He or she 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 or she will incur a strike if 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 or she will be required to prosecute his or her 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 or she will be required to pay a full filing fee, either in installments or in full, depending on whether he or she qualifies for indigent status under
§§ 1915(b) or (g) .2
In addition, if the plaintiffs desire to continue this litigation as a group, any proposed amended complaint, motion, or other document filed on behalf of multiple plaintiffs must be signed by each of the plaintiffs. As long as the plaintiffs appear without counsel in this action, each plaintiff must sign documents for himself or herself. See Lewis v. Lenc-Smith Mfg. Co., 784 F.2d 829, 831 (7th Cir. 1986);
Motions to Amend Complaint and Add Plaintiff
On January 17, 2017, Robert E. Allen, who is not a party to this action but is also in custody at the Jail, filed a Motion to Amend Complaint (Doc. 4) and a Motion to Add Plaintiff (Doc. 5) in this case. None of the plaintiffs signed either of Mr. Allens motions. Because each of the plaintiffs must sign any proposed amended complaint, motion, or other document filed on behalf of multiple plaintiffs, and the plaintiffs signed neither motion, Mr. Allens Motion to Amend Complaint (Doc. 4) and Motion to Add Plaintiff (Doc. 5) are hereby DENIED pursuant to Rule 11 of the Federal Rules of Civil Procedure. Boriboune, 391 F.3d at 855 (Rule 11 requires all unrepresented plaintiffs to sign the complaint). The CLERK is DIRECTED to: (1) REMOVE Mr. Allen4 as a party on CM/ECF and (2) SEND a copy of this Order to him.
One January 30, 2017, Plaintiff Salter filed a Motion to Amend #2 (Doc. 6) seeking to add as plaintiffs to this case Jeffrey A. Rasler II, Charles A. Braggs, and John Moore. (Doc. 6, p. 1). Plaintiff Salter was the only plaintiff to sign this Motion (Doc. 6). Therefore, pursuant to Rule 11 of the Federal Rules of Civil Procedure, Plaintiff Salters Motion to Amend #2 (Doc. 6) is hereby DENIED. If plaintiffs desire to add Mr. Allen, Mr. Rasler, Mr. Braggs, and Mr. Moore (collectively, the Proposed Plaintiffs) as plaintiffs to this lawsuit, they may file an Amended Complaint, signed by all of the plaintiffs in this action as well as the Proposed Plaintiffs, that includes the Proposed Plaintiffs in the case caption. If plaintiffs choose to file an Amended Complaint, they must comply with the instructions articulated in the disposition and the applicable rules for doing so, including Local Rule 15.1.
Disposition
IT IS HEREBY ORDERED that each named plaintiff (other than Plaintiff Smith) shall advise the Court in writing on or before March 6, 2017, whether he or she wishes to continue as a plaintiff in this group action. If, by that deadline, any non-lead plaintiff advises the Court that he or she does not wish to participate in the action, he or she will be dismissed from the lawsuit and will not be charged a filing fee for this action.5 This is the only way to avoid the obligation to pay a filing fee for this action.
IT IS ALSO ORDERED that if any plaintiff wants to pursue his or her claims individually in a separate lawsuit, he or she shall so advise the Court in writing, and his or her claims shall be severed into a new action where a filing fee will be assessed.
IT IS FURTHER ORDERED that each plaintiff who chooses to continue as a plaintiff either in this action or in a severed individual case, is hereby ORDERED to pay his or her filing fee of $400.00 or file a properly completed IFP Motion on or before March 6, 2017. When a plaintiff files an IFP Motion, the Court must review that plaintiffs trust fund account statement for the six month period immediately preceding the filing of this action. Thus, each plaintiff must have the Trust Fund Officer at his facility complete the attached certification and provide a copy of his or her trust fund account statement (or institutional equivalent) for the period 7/5/2016 to 1/5/17. This information should be mailed to the Clerk of Court at the following address: United States District Court Southern District of Illinois, 750 Missouri Avenue, East St. Louis, Illinois 62201.
Failure to submit a properly completed IFP Motion does not relieve that plaintiff of the obligation to pay a filing fee, unless he or she also submits timely written notice that he or she
Plaintiffs are GRANTED leave to file a First Amended Complaint for the purpose of adding any or all of the Proposed Plaintiffs on or before March 6, 2017. Should plaintiffs fail to file this First Amended Complaint within the allotted time or consistent with the instructions set forth in this Order, the case shall proceed without the Proposed Plaintiffs with whichever plaintiffs remain in this case. If any Proposed Plaintiff is added to this case, he will be obligated to pay a filing fee of $400.00 or file a properly completed IFP Motion, along with the required trust fund account information and Trust Fund Officer certification. This Court will assume any Proposed Plaintiff that joins this action is aware of the potential drawbacks of joining group litigation in federal courts outlined in this Order.
Should plaintiffs decide to file a First Amended Complaint, it is strongly recommended that they use the forms designed for use in this District for such actions. They should label the form, First Amended Complaint, and they should use the case number for this action (i.e. 17-cv-006-JPG). The pleading shall present each claim in a separate count, and each count shall specify, by name, each defendant alleged to be liable under the count, as well as the actions alleged to have been taken by that defendant and each plaintiff these actions were taken against. Plaintiffs should attempt to include the facts of the case in chronological order, inserting each defendants name where necessary to identify the actors. Plaintiffs should refrain from filing unnecessary exhibits. Plaintiffs should include only related claims in the new complaint. Claims found to be unrelated to the Eighth Amendment deliberate indifference and conditions of
An amended complaint supersedes and replaces the original complaint, rendering the original complaint void. See Flannery v. Recording Indus. Ass‘n of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). The Court will not accept piecemeal amendments to the original Complaint. Thus, the First Amended Complaint must stand on its own, without reference to any previous pleading, and plaintiffs must re-file any exhibits they wish the Court to consider along with the First Amended Complaint. The First Amended Complaint is subject to review pursuant to
In addition, plaintiffs are again WARNED that future group motions or pleadings that do not comply with the group pleading requirements discussed herein shall be stricken pursuant to Rule 11(a).
The CLERK is DIRECTED to send a copy of this Order to each of the named plaintiffs, as well as Robert E. Allen, and to enclose a blank form IFP Motion and trust fund account certification form for each plaintiff except Plaintiff Smith. The CLERK is also DIRECTED to enclose a blank civil rights complaint form for Plaintiff Smith, as lead Plaintiff, to enable plaintiffs to file a First Amended Complaint if they so desire.
Plaintiffs are ADVISED that the Complaint is currently awaiting preliminary review by the Court pursuant to
Plaintiffs are further ADVISED that each of them is under a continuing obligation to
IT IS SO ORDERED.
DATED: February 2, 2017
s/J. Phil Gilbert
United States District Judge