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I.S.B., Also Known As Inmates v. State of South Dakota ) Commissioner of ) Administration

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION


February 24, 2011

I.S.B., ALSO KNOWN AS INMATES STRIKES BACK; WILLIE REED, IV, CHAIRPERSON OF I.S.B.; THANH QUANG NGO, CHAIRPERSON ) OF THE FIRST DISTRICT INMATES ) ORDER DENYING MOTIONS FOR CONSTITUTIONAL RIGHTS COMMITTEE; ) EXTENSION OF TIME AND ERIC WHITE, CHAIRPERSON OF THE ) GRANTING MOTIONS TO SECOND DISTRICT INMATES ) VACATE INITIAL ASSESSMENT CONSTITUTIONAL RIGHTS COMMITTEE; ) REGARDING GARCIA AND GARY FEDDERSON, CHAIRPERSON OF INGALLS AND VACATING ORDER THE THIRD DISTRICT INMATES ) PRECLUDING REED FROM FILING CONSTITUTIONAL RIGHTS COMMITTEE; ) DOCUMENTS OR MOTIONS ELIAS JOHNSON, CHAIRPERSON OF THE FIFTH DISTRICT INMATES CONSTITUTIONAL RIGHTS COMMITTEE; TIMOTHY MADDOX, REPRESENTATIVE MEMBER ) FOR INMATES CONVICTED IN THE FIRST CIRCUIT COURT; SHARIF NURADIN, REPRESENTATIVE ) MEMBER FOR INMATES CONVICTED IN THE SECOND CIRCUIT COURT; MICHAEL SULLIVAN, REPRESENTATIVE ) MEMBER FOR INMATES CONVICTED IN THE FIFTH CIRCUIT COURT; STANLEY REED, REPRESENTATIVE ) MEMBER FOR INMATES CONVICTED IN ) THE SIXTH CIRCUIT COURT; STEWART MOUSSEAUX, REPRESENTATIVE ) MEMBER FOR INMATES CONVICTED IN THE SEVENTH CIRCUIT COURT; REPRESENTED CLASS OF INMATES INCARCERATED; DANIEL LEE ELLENDORF, CHAIRPERSON OF THE CONTINGENT CONSTITUTIONAL RIGHTS COMMITTEE; CHRISTOPHER JOHN WALDNER, REPRESENTATIVE MEMBER OF THE CONTINGENT CONSTITUTIONAL RIGHTS COMMITTEE; NICHOLAS RYAN HEMSHER, ) REPRESENTATIVE MEMBER OF THE ) CONTINGENT CONSTITUTIONAL RIGHTS ) COMMITTEE; ) NICHOLAS QUENTIN ANDERSON, REPRESENTATIVE MEMBER OF THE ) CONTINGENT CONSTITUTIONAL RIGHTS COMMITTEE; ) RAMON VALERIO GARCIA, ) REPRESENTATIVE MEMBER OF THE CONTINGENT CONSTITUTIONAL RIGHTS ) COMMITTEE; ) DONALD INGALLS, MEMBER OF ) CONTINGENT CONSTITUTIONAL RIGHTS ) COMMITTEE OF I.S.B., ET. AL.; AND ) RALPH BUCHHOLD, MEMBER OF THE ) FOURTH DISTRICT INMATES CONSTITUTIONAL RIGHTS COMMITTEE OF I.S.B., ET. AL, ) ZACHARY T. ARVIN; ) JAMES R. JAMES; ) CLAY STUBBS; ) JAKE LEVI BRINGS THREE WHITE ) HORSES A/K/A LEVI BRINGS THREE WHITE HORSES, PLAINTIFFS,
v.
STATE OF SOUTH DAKOTA ) COMMISSIONER OF ) ADMINISTRATION, PERSON OR PERSONS; ) SOUTH DAKOTA DEPARTMENT OF ) REVENUE & REGULATIONS, DIV. OF INSURANCE, PERSON OR PERSONS; ) SOUTH DAKOTA BUREAU OF ) PERSONNEL, PERSON OR PERSONS; ) SOUTH DAKOTA DEPARTMENT OF ) HEALTH AND HUMAN SERVICES, ) PERSON OR PERSONS; TIM REISCH, SOUTH DAKOTA ) DEPARTMENT OF CORRECTIONS CABINET SECRETARY; ) DOUGLAS WEBER, SOUTH DAKOTA ) DEPARTMENT OF CORRECTIONS, WARDEN, ) DIRECTOR OF PRISON OPERATIONS; ) SOUTH DAKOTA DEPARTMENT OF ) CORRECTIONS, STATE PENITENTIARY ) PERSON OR PERSONS; SOUTH DAKOTA DEPARTMENT OF CORRECTIONS, ) JAMESON ANNEX, PERSON OR PERSONS; ) SOUTH DAKOTA DEPARTMENT OF ) CORRECTIONS, MIKE DURFEE STATE ) PRISON, PERSON OR PERSONS; ) SOUTH DAKOTA DEPARTMENT OF ) CORRECTIONS, RAPID CITY MINIMUM UNIT, PERSON OR PERSONS; ) SOUTH DAKOTA DEPARTMENT OF CORRECTIONS, WOMEN'S PRISON, ) PERSON OR PERSONS; ) SOUTH DAKOTA DEPARTMENT OF ) CORRECTIONS, YANKTON MINIMUM ) UNIT, PERSON OR PERSONS; ) STATE SOUTH DAKOTA PAROL ) BOARD OF PARDON, PERSON OR PERSONS; ) STATE SOUTH DAKOTA FIRST ) CIRCUIT COURT, PERSON OR PERSONS; ) STATE SOUTH DAKOTA SECOND ) CIRCUIT COURT, PERSON OR PERSONS; ) STATE SOUTH DAKOTA THIRD ) CIRCUIT COURT, PERSON OR PERSONS; ) STATE SOUTH DAKOTA FOURTH ) CIRCUIT COURT, PERSON OR PERSONS; ) STATE SOUH DAKOTA FIFTH ) CIRCUIT COURT, PERSON OR PERSONS; ) STATE SOUTH DAKOTA SIXTH ) CIRCUIT COURT, PERSON OR PERSONS; ) STATE SOUTH DAKOTA SEVENTH ) CIRCUIT COURT, PERSON OR PERSONS; ) LAWRENCE COUNTY PUBLIC ) DEFENDER OFFICE, PERSON OR ) PERSONS; MINNEHAHA COUNTY PUBLIC ) DEFENDER OFFICER, PERSON OR ) PERSONS; PENNINGTON COUNTY PUBLIC ) DEFENDER OFFICE, PERSON OR ) PERSONS; MARTY J. JACKLEY, ATTORNEY ) GENERAL, STATE OF SOUTH DAKOTA; ) ANN C. MEYER, ASSISTANT ATTORNEY ) GENERAL, STATE OF SOUTH DAKOTA; ) GINA S. NELSON, DEPUTY STATE'S ) ATTORNEY, PENNINGTON COUNTY SD; ) JAMES IOSTY, DEPUTY STATE'S ) ATTORNEY, MINNEHAHA COUNTY SD; ) PATRICK T. PARDY, DEPUTY STATE'S ) ATTORNEY, MINER COUNTY SD; ) LORA ROETZEL, DEPUTY STATE'S ) ATTORNEY, PENNINGTON COUNTY SD; ) COLLEEN MORAN, DEPUTY STATE'S ) ATTORNEY, MINNEHAHA COUNTY SD; ) ERIC K. JOHNKE, DEPUTY STATE'S ) ATTORNEY, YANKTON COUNTY SD; ) AARON MCGOWAN, DEPUTY STATE'S ) ATTORNEY, MINNEHAHA COUNTY SD; ) KERRY M. CAMERON, STATE'S ATTORNEY, ROBERTS COUNTY SD; ) JOHN FITZGERALD, STATE'S ) ATTORNEY, LAWRENCE COUNTY SD; ) GLENN BRENNER, STATE'S ATTORNEY, ) PENNINGTON COUNTY, SD; ) DEPUTY STATES ATTORNEY-COUNTY ) ATTORNEY- STATES ATTORNEY- ASSISTANT ) ATTORNEY GENERAL- DEPUTY ATTORNEY GENERAL-ATTORNEY GENERAL-DISTRICT ) ATTORNEY-PROSECUTING ATTORNEY- PUBLIC DEFENDER OF THE REPRESENTED ) CLASS OF INMATES INCARCERATED TO ) WHICH SUCH MATTERS OF THE CAUSE ) AFFECTS AND/OR AFFECTED IN THIS CLASS ) ACTION LAWSUIT, IN THE STATE OF SOUTH ) DAKOTA; ) ALL THE CIRCUIT COURT JUDGES, OF THE ) FIRST, SECOND, THIRD, FOURTH, FIFTH, SIXTH, AND SEVENTH CIRCUIT COURT IN ) THE STATE OF SOUTH DAKOTA TO WHICH ) SUCH MATTERS OF THIS CLASS ACTION LAW ) SUIT INVOLVED; ) SOUTH DAKOTA STATE DIETICIAN, ) PERSON OR PERSONS; ) C.B.M.,CONTRACTED WITH THE ) DEPARTMENT OF CORRECTION OF SOUTH ) DAKOTA; ) ROBERT DOOLEY, WARDEN, MIKE ) DURFEE STATE PRISON; ) CAPT. DOYLE, CORRECTIONAL OFFICER, ) MIKE DURFEE STATE PRISON; ) LT. KAUFENBERG, SPECIAL SECURITY, ) MIKE DURFEE STATE PRISON; ) LAWRENCE COUNTY COMMISSIONER, PERSON OR ) PERSONS; ) PENNINGTON COUNTY ) COMMISSIONER, PERSON OR ) PERSONS; ) HUGHES COUNTY ) COMMISSIONER, PERSON OR PERSONS; ) ROBERTS COUNTY ) COMMISSIONER, PERSON OR ) PERSONS; ) MINER COUNTY COMMISSIONER, ) PERSON OR PERSONS; ) MEADE COUNTY COMMISSIONER, ) PERSON OR PERSONS; ) MINNEHAHA COUNTY ) COMMISSIONER, PERSON OR PERSONS; ) YANKTON COUNTY ) COMMISSIONER, PERSON OR ) PERSONS; ) BON HOMME COUNTY ) COMMISSIONER, PERSON OR ) PERSONS; ) ED LIGTENBERG, DIRECTOR OF SOUTH ) DAKOTA PAROLE BOARD OF PARDON; ) DEBRA C. FLUTE, MEMBER OF SOUTH DAKOTA PAROLE BOARD OF PARDON; ) JAMES P. SMITH, MEMBER OF SOUTH DAKOTA PAROLE BOARD OF PARDON; ) PATRICIA MEYERS, MEMBER OF ) SOUTH DAKOTA PAROLE BOARD OF ) PARDON; ) KEITH BONENBERGER, MEMBER OF SOUTH DAKOTA PAROLE BOARD OF ) PARDON; ) JESSE SONDREAL, MEMBER OF SOUTH DAKOTA PAROLE BOARD OF ) PARDON; ) KAY F. NIKOLAS, MEMBER OF SOUTH ) DAKOTA PAROLE BOARD OF PARDON; ) DAVE NELSON, MEMBER OF SOUTH ) DAKOTA PAROLE BOARD OF PARDON; ) MIKE ROUNDS, GOVERNOR OF THE STATE OF SOUTH DAKOTA; ) JOHN E. HAAK, PROSECUTOR, SD ) ASSISTANT ATTORNEY GENERAL OF SD, ) 2000-2001; ) JOHN R. STEELE, PROSECUTOR, AURORA COUNTY SD; ) MATCHAN, PROSECUTOR, MINNEHAHA ) COUNTY SD; AND VINCE FOLEY, PROSECUTOR, ) CODINGTON COUNTY, SD; DEFENDANTS.

The opinion of the court was delivered by: Karen E. Schreier Chief Judge

Plaintiffs move for an extension of time in order to allow them to review the Prisoner Litigation Reform Act of 1996 (PLRA). Docket 272. They also indicate that the information provided to the court in two of the plaintiffs' prisoner trust account reports was incorrect. Ramon V. Garcia and Donald Ingalls have indicated that frozen funds were incorrectly included in the numbers provided to the court. Plaintiffs also argue that "many members of I.S.B. and plaintiffs are mischaracterizing [sic], being misinformed, and being misleaded [sic] by only allowing the filings of the district court to reach all plaintiffs and not the filings of I.S.B." Id. Plaintiffs further note that "I.S.B. members and plaintiffs are not allowed to communicate with each other by mail from facility to facility." Plaintiffs also assert that the filing fee was paid for Willie Reed and that the court should reverse its order enjoining Willie Reed from filing anything in this case.

DISCUSSION

I. Motion for Extension of Time

Rule 6(b) of the Federal Rules of Civil Procedure governs motions for

the extension of time. It provides:

When an act may or must be done within a specified time, the court may, for good cause, extend the time:

(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or

(B) on motion made after time has expired if the party failed to act because of excusable neglect. A motion granted under either portion requires as a threshold matter a showing of "good cause." But plaintiffs cannot make this requisite showing.

Plaintiffs have been aware that the case would be "screened" pursuant

to the PLRA since at least early November 2010. See Docket 147, Order of

October 28, 2010 (giving warning notice and notifying plaintiffs that case

would be screened after November 30, 2010). Moreover, due to the addition

of new plaintiffs who did not receive the court's earlier warning notice, the screening of this case has already been extended once. See Docket 238,

Order Granting Motions to Withdraw & Warning Notice to New Plaintiffs,

dated December 10, 2010. Thus, plaintiffs have had over two months to

research the requirements of the PLRA and to voluntarily dismiss or amend

their complaints. A review of this court's docket demonstrates that the

various plaintiffs have been prolific in filing other motions. They have filed

over 250 documents and motions in this case. And the complaint has not

yet been served on any of the considerable number of state and county

departments and officials named as defendants. Moreover, the court notes

that several of the plaintiffs have previously been assessed "strikes" under

the PLRA, and thus, they should be familiar with the statute. Accordingly,

the contention that plaintiffs have had insufficient time to research the

PLRA screening process is disingenuous. Plaintiffs' motion to extend time is

denied.

II. Incorrect Initial Partial Payments

Two plaintiffs, Ramon V. Garcia and Donald Ingalls, assert that frozen

funds were incorrectly included in the prisoner trust account numbers

provided to the court. The inmate banking system statements they provided

to the court demonstrate the truth of their contentions. See Docket 272-1.

Therefore, the initial partial payments they were respectively ordered to make are too high.*fn1 Garcia and Ingalls have not provided updated prisoner

trust account reports. Rather, they have submitted printouts showing the

balance of their inmate accounts. Garcia and Ingalls have signed them, but

no prison official has certified the accuracy of the account statements. When

Garcia and Ingalls provide updated prisoner trust account reports, the court

will reassess the partial filing fees for which they are responsible and vacate

the initial fees ordered. Garcia and Ingalls will be provided with prisoner

trust account forms as attachments to this order.

III. I.S.B. Filings Not Provided to Springfield Members by Court

Plaintiffs' final contention is that they are being treated unfairly "by

not allowing other members down in Springfield to receive filings made by

I.S.B. to the District Court under Civil 10-4142." Docket 272. Plaintiffs

complain that the inmates incarcerated at Mike Durfee State Prison in

Springfield are confused and misinformed because they have only been

receiving copies of this court's orders. This court has not interfered with

plaintiffs' ability to communicate with other plaintiffs. Rather, plaintiffs

assert that they are forbidden by prison policy from communicating with

inmates confined in different facilities.*fn2 They ask this court to provide all

plaintiffs with copies of every motion filed by plaintiffs in this case.

Plaintiffs who litigate jointly have a responsibility to keep each other

apprised of what is filed on their behalf. It is not the responsibility of the

court to provide each plaintiff with copies of motions that their co-plaintiffs

have filed. "When [inmates] are housed separately and a filing is not jointly

signed, Rule 5 [of the Federal Rules of Civil Procedure] requires that it be

served on all other parties, including the other plaintiffs." Wasko v. Allen

Cnty. Jail, No. 1:06-CV_ 085,2006 WL 978956, at *1 (N.D. Ind. Apr. 12,

2006) (denying joinder of 41 prisoner plaintiffs). The plaintiffs were

undoubtedly aware of the Department of Corrections' policy regarding

communication between inmates incarcerated in different facilities before

they initiated this lawsuit. Moreover, the court notified all of the plaintiffs

that they were responsible for knowing the contents of what was being filed

on their behalf and that they could be subject to sanctions for the content of

these motions. See Docket 147, 238. Thus, plaintiffs' request is denied.

IV. Willie Reed

Plaintiffs' final contention is that the order enjoining Willie Reed from

filing any motions or documents in this case should be reversed because the

$350 filing fee has been paid. Because Reed has paid the $350 filing fee, the

order enjoining Reed from filing any documents or motions in this case is

vacated. Therefore, it is

ORDERED that plaintiffs' motion for an extension of time, for the

provision of copies, and for the reversal of the order enjoining Reed from

filing any documents (Docket 272) is denied.

IT IS FURTHER ORDERED that plaintiffs Ramon V. Garcia and

Donald Ingalls shall submit updated prisoner trust account reports by

March 18, 2011. The forms are provided herein. After Garcia and Ingalls

submit the reports, the court will reassess the initial filing fee for which they

are responsible and vacate the initial assessment.

IT IS FURTHER ORDERED that the court hereby vacates that portion

of its prior order (Docket 239) that enjoined Reed from filing any documents

or motions in this case.

BY THE COURT:


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