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stating that disallowing joinder effectuates the filing fee and three-strikes provisions of 28 U.S.C. § 1915, and also avoids all appearance of impropriety in terms of one pro se plaintiff acting for others
Summary of this case from Loughridge v. AtkinsonOpinion
Cause No. CV 05-93-GF-CSO.
January 30, 2006
ORDER re: FILING FEES AND JOINDER
On September 15, 2005, Plaintiff Wayne Swenson moved to proceed in forma pauperis with this action under 42 U.S.C. § 1983. Two other persons, Ronald Ward and Anthel Brown, signed the Complaint but did not move to proceed in forma pauperis or pay the filing fee or any portion of it. Swenson, Brown, and Ward are all state prisoners proceeding pro se. At the time the Complaint was filed, all three plaintiffs were incarcerated at Crossroads Correction Center in Shelby, Montana. Ward has since been transferred to the Montana State Prison at Deer Lodge, Montana.
For the following reasons, the Court will require Plaintiff Brown and Plaintiff Ward each to pay the full filing fee or move to proceed in forma pauperis. If Brown or Ward responds, the Court will sever the responding Plaintiff and require each of the plaintiffs to proceed separately. As for Plaintiff Swenson, his forma pauperis motion must be supported by a statement of his inmate trust account.
I. May Pro Se Prisoner-Plaintiffs Proceed Jointly?
As a general rule, to initiate an action, a plaintiff must submit either the full filing fee or a motion to proceed in forma pauperis. See 28 U.S.C. § 1914 (a); 28 U.S.C. § 1915 (a) (1). The few courts that have expressly considered the matter agree that prisoner-plaintiffs who proceed together in one action must each pay the full filing fee. Otherwise, an important objective of the Prison Litigation Reform Act of 1996 — to impose a financial check on an inmate's decision to conduct litigation — would be undermined. See, e.g., Boriboune v. Berge, 391 F.3d 852, 854-56 (7th Cir. 2004); Hubbard v. Haley, 262 F.3d 1194, 1196-98 (11th Cir. 2001). So far as this Court is aware, those are the only two appellate cases that discuss the issue.
A Sixth Circuit case assumes, without discussing the issue, that the filing fee may be shared among multiple prisoner-plaintiffs. See Talley-Bey v. Knebl, 168 F.3d 884, 887 (6th Cir. 1999) (Boyce, Ch. J.) ("Because each prisoner chose to prosecute the case, we hold that each prisoner should be proportionately liable for any fees or costs that may be assessed."). What Talley-Bey actually decided was whether two plaintiffs who were compelled to pay the defendants' costs in the amount of $41.00 should be jointly liable for the amount. Assessing a defendant's costs against two plaintiffs is different than assessing a filing fee; a defendant is not entitled to recapture double or treble his costs just because there were two or three plaintiffs. Talley-Bey, then, still does not address the filing fee issue. In 1997, the Chief Judge of the Sixth Circuit — the same judge who wrote the opinion in Talley-Bey — issued an administrative order directing that each prisoner joining in a civil action should be proportionally liable for fees and costs "[b]ecause each prisoner chose to join in the prosecution of the case." See In re Prison Litigation Reform Act, 105 F.3d 1131, 1137-38 (6th Cir. 1997) (administrative order issued "until such time as panels of this court have the opportunity to address the numerous issues raised by the Act"). Of course, the same reasoning — that each plaintiff chose to prosecute the case — can be used to support imposition of the full filing fee on each plaintiff.
Although Boriboune and Hubbard agree that each prisoner-plaintiff must pay the full amount of the filing fee, the courts disagree as to whether it is permissible for multiple plaintiffs to join their claims together in one action or whether each plaintiff must pursue a separate action. Boriboune holds that multiple prisoner-plaintiffs may proceed together under the permissive joinder rule, Fed.R.Civ.P. 20. Boriboune, 391 F.3d at 856. As the district court pointed out on remand inBoriboune, this holding does not address 28 U.S.C. § 1915(b) (3), which provides that "[i]n no event shall the filing fee collected exceed the amount of fees permitted by statute for the commencement of a civil action." Boriboune v. Berge, 2005 WL 147400, at *2, No. 04-C-0015-C (W.D. Wis. 2005). If multiple prisoner-plaintiffs proceed together in one action and each pays the full filing fee, the amount of the fees collected in that action will exceed the amount permitted by statute for the commencement of a civil action. Hubbard, by contrast, reasons that Rule 20 "actually conflicts" with the PLRA's requirement that prisoner-plaintiffs must pay the full filing fee. There, the court concluded that, in the context of prisoner cases, the latter-enacted statute, 28 U.S.C. § 1915(b) (1), repeals the earlier-enacted rule. Consequently, the Eleventh Circuit precluded multiple prisoner-plaintiffs from proceeding under Rule 20. See Hubbard, 262 F.3d at 1198.
This Court believes that Hubbard presents the stronger argument. Again, both Boriboune and Hubbard agree that each prisoner-plaintiff must pay the full amount of the filing fee, lest the fee provisions of the PLRA be frustrated. However,Boriboune's reliance on Rule 20 is not persuasive. Rule 20 is a permissive rule — plaintiffs may join their claims in one action — while the financial scheme of the PLRA is mandatory in nature. Prisoner-plaintiffs must pay the full filing fee, even if they are granted leave to proceed in forma pauperis, but each prisoner-plaintiff in a multiple-plaintiff action cannot be made to do so without running afoul of § 1915(b) (3)'s imperative that the amount of the fee collected must not exceed the fee imposed for "commencement of a civil action."
Hubbard's severance solution, on the other hand, is consistent with 28 U.S.C. § 1915(b) (1) and (3). If each plaintiff is required to pursue his or her case alone, the amount of the fees collected in each action will never exceed the amount permitted by statute for the commencement of a civil action.
Additionally, the court respectfully concludes that some of the reasoning in Boriboune is inapposite. In the course of addressing the district court's concerns about joint litigation among inmates, Boriboune summarizes the working of an incentive structure by which Fed.R.Civ.P. 11(b) and the three-strikes provision of 28 U.S.C. § 1915(g) might persuade inmates not to proceed jointly:
One of the district court's primary concerns was that unscrupulous "jailhouse lawyers" might exploit other prisoners by attempting to act on their behalf. The circuit court reasoned that such a concern exists whether prisoner-plaintiffs proceed jointly or not. See Boriboune, 391 F.3d at 854.
However, the district court may have had in mind a different inflection of the same concern. Some prisons strictly limit or prohibit inmate-to-inmate legal assistance. Inmates might see a joint action with other inmates as a way around that limitation. But if the prison provides legal assistance to inmates by some other means, as it is constitutionally required to do, the court has no authority to assist inmates in avoiding a legitimate prison regulation. If the prison fails to provide legal assistance by means other than inmates, that problem should be addressed in its own terms.
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). A prisoner litigating jointly under Rule 20 takes those risks for all claims in the complaint, whether or not they concern him personally. Sharing works both ways; detriments as well as costs are parceled out among plaintiffs. Rule 11 requires all unrepresented plaintiffs to sign the complaint, and the signature conveys all of the representations specified by Rule 11(b) for the entire complaint. Likewise § 1915(g) limits to three the number of IFP complaints or appeals that were "dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted". This language refers to the complaint or appeal as a whole; thus when any claim in a complaint or appeal is "frivolous, malicious, or fails to state a claim upon which relief may be granted", all plaintiffs incur strikes. Many prisoners may think that the risks of joint litigation under Rule 11 and § 1915(g) exceed the gains of sharing the filing fee. One could imagine situations in which joined claims lack overlap, and in which it would be inappropriate to attribute Plaintiff A's claim to Plaintiff B for the purpose of "strikes"; but then joinder may be impermissible under Rule 20 itself, or severance appropriate. When claims are related enough to be handled together, they are related enough for purposes of § 1915(g) as well.Boriboune, 391 F.3d at 854-55.
First, the court's observation that § 1915(g) applies to "the complaint . . . as a whole" conflicts with its assertion that "when any claim in a complaint or appeal is 'frivolous, malicious, or fails to state a claim upon which relief may be granted', all plaintiffs incur strikes." Id. (emphasis added). The statute does not impose strikes on a per-claim basis but on a per-case basis. See 28 U.S.C. § 1915(g) (requiring district court to impose a strike when an "action" is frivolous, malicious, or fails to state a claim). Consequently, if all pro se prisoner-plaintiffs in joint litigation are deemed to act as one, as Boriboune assumes, Rule 20 actually limits a frivolous claimant's exposure under § 1915(g) if his claims are joined with others that may be meritorious. A pro se prisoner-plaintiff litigating alone receives a strike if he earns it; the same plaintiff litigating jointly might avoid a strike because someone else did not earn it.
Second, the Boriboune court opines that each pro se prisoner-plaintiff would be bound by Rule 11 with respect to each pleading or document as a whole, not just with respect to those allegations or matters that concern him or her personally. Yet a pro se litigant has no authority to make assertions on behalf of anyone else; only an attorney may do that. To suggest that a pro se prisoner-plaintiff can be penalized under Rule 11 for, say, inaccurate factual statements made by another prisoner-plaintiff is to suggest that each plaintiff acts for the others in some way.
A Rule 11 sanction would be inappropriate if assessed against a pro se prisoner-plaintiff who could conduct a reasonable investigation into the truth of a co-plaintiff's allegation only by asking the co-plaintiff what happened. That, of course, will usually be the case, because prisoners do not have unencumbered opportunities to question witnesses, who are most frequently officers or staff with considerable authority over the investigating plaintiff. Such a scenario may arise even where joinder is proper. In Hubbard, for instance, the plaintiffs were dialysis patients who alleged that their medical care and diet at St. Clair Correctional Facility was inadequate and violated the Eighth Amendment. It is proper to join such claims under Rule 20, but it would be unduly harsh to sanction one prisoner if another prisoner inaccurately claims to have been deprived of treatment for a certain period of time. Rule 11(c) imposes an obligation on the trial court to determine who is responsible for violating the rule. It does not permit a court to impose a blanket sanction without evidence to support it.
Third, Boriboune does not consider the practical difficulties of joint litigation among plaintiffs who have no guarantee that they will all remain at the same prison or in the same area of a prison while they are litigating together. Prison officials inspect inmate correspondence for security reasons; co-plaintiffs' papers intended for filing in court are no exception. Fed.R.Civ.P. 5 would require each pro se prisoner-plaintiff in a multiple-plaintiff case to serve every other pro se prisoner-plaintiff with every document filed.See Boriboune, 2005 WL 147400 at *2. Even before a defendant appears, in this case with three plaintiffs, that would mean that the contents of six envelopes would have to be inspected by prison staff before they could be mailed to each plaintiff's co-plaintiffs. Three additional envelopes addressed to the court, for a total of nine, would have to be processed through the prison mail system, every time a document is filed. Even if all three plaintiffs sign one document — which triggers the problems referred to in the preceding two paragraphs — that document must be circulated among them for signing. And neither the Court nor any litigant has any way of knowing whether the second or third plaintiff to sign the document altered it in some way, perhaps by adding language that amounts to harassment, see Fed.R.Civ.P. 11(b) (1), until it is served on each plaintiff at the same time it is served on the Court.
One of the plaintiffs in this case sought, in another case, to use his proposed joint litigation to compel prison authorities to permit all thirty of the plaintiffs to "gather" for the purpose of discussing and filing motions. See Pl. Brown's Resp. to Order (doc. 4) at 2, Brown v. Slaughter, No. CV 05-28-H-DWM (CSO) (D. Mont. June 20, 2005).
Finally, Boriboune does not account for the fact that prisoners are not in the same situation as most other pro se litigants who might choose to join together in one action. It is appropriate for courts to bear in mind that coercion, subtle or not, frequently plays a role in relations between inmates.Boriboune's economic incentive structure may not be a prime consideration in the litigation decisions of the cellmate of a prisoner who has three strikes.
None of these problems arise under Hubbard's approach.Hubbard forecloses pro se prisoner-plaintiffs from an opportunity available to other civil litigants under Fed.R.Civ.P. 20, but it does so in a way that effectuates the filing fee and three-strikes provisions of 28 U.S.C. § 1915, as well as avoiding all appearance of impropriety in terms of one pro se plaintiff acting for others. Especially in view of Boriboune's and Hubbard's agreement that each plaintiff must pay the filing fee, pro se prisoner-plaintiffs appear to suffer no disadvantages if they are not permitted to proceed jointly under Rule 20. Those pro se prisoner-plaintiffs who act in good faith or who bring potentially meritorious claims are not penalized. Any benefit prisoner-plaintiffs may enjoy in proceeding as co-plaintiffs in an action are not thwarted by requiring them to proceed in separate actions. Nothing would prevent the three plaintiffs in this case from coordinating their litigation and proceeding simultaneously and in parallel fashion, to the extent their institutional placement permits them to do so. Also, the Court could order the consolidation of cases, under appropriate circumstances, to make discovery and trial more efficient for the litigants. Further, prisoner-plaintiffs are protected from the Rule 11 sanctions that may, underBoriboune's reasoning, be invited by others. Also, if they are not required to serve multiple other plaintiffs in the same action, they save on postage and copying — considerable expenses for most prisoners — and probably experience less delay in resolution of their claims.
For all these reasons, the Court will not permit Swenson, Brown, and Ward to proceed jointly in this action. Brown and Ward have not properly initiated an action because neither of them paid the filing fee or any portion of it and neither moved to proceed in forma pauperis. Each of them will be given an opportunity to respond to this Order either by paying the full filing fee or submitting a forma pauperis motion.
II. Swenson's Motion
Swenson is the only plaintiff who moved to proceed in forma pauperis. His motion states that he has received "$350.00 sporadically" in the last year "to get settled in prison." See Application (Court's doc. 1) at 3. The attached account statement is dated March 1, 2005, to September 9, 2005, but it shows only two transactions, deposits of $241.43 and $100.00 on September 8, 2005. Swenson was sentenced in August 2004. See CON Network, http://app.mt.gov/conweb. These facts suggest to the Court that Swenson was incarcerated at jails or prisons other than Crossroads prior to September 8, 2005. He must obtain account statements from each institution where he has been incarcerated in the past six months.
Swenson is advised that he will be required to pay the statutory filing fee of $250.00 for this action, even if forma pauperis status is granted and even if the case is dismissed.See 28 U.S.C. § 1915(b) (1), (e) (2). Monthly payments of 20% of the income credited to his account each month will be garnished by the Court. The percentage is set by statute and cannot be altered. See 28 U.S.C. § 1915(b) (2).
Based on the foregoing, the Court enters the following:
ORDER
1. On or before February 13, 2006, Plaintiffs Brown and Ward may respond to this Order either by tendering the full amount of the filing fee, $250.00, or by moving to proceed in forma pauperis. Either Plaintiff's failure to timely respond to this Order will result in a recommendation that the non-responding Plaintiff be dismissed from the action. If either Plaintiff timely responds and is thus permitted to proceed, his case will be severed from the cases of the other plaintiffs.
2. On or before February 13, 2006, Plaintiff Swenson shall submit a statement(s) of his inmate trust account showing at least six months' history. If he has been incarcerated at more than one institution in the past six months, he must write to that institution to obtain a copy of his inmate trust account statement from that facility. Failure to timely comply with this Order will result in a recommendation that Swenson be dismissed from the action.
3. Each plaintiff must immediately inform the Court of any change in his mailing address. Failure to do so may result in plaintiff's dismissal without notice.
4. Each plaintiff must serve any response he makes to this Order, and anything else he submits to the Court, on the other plaintiffs. No plaintiff is required to serve the Defendants at this time.