United States District Court, D. South Dakota, Central Division
MARY E. PETERSEN, MELISSA BOYER, VENESA JOVEN, NANCY AKIN, Plaintiffs,
DENNIS KAEMINGK, BRENDA HYDE, STEVE ALLARD, WILLIAM SCHIED, SCOTT MEES, JON DEGREEF, TONY HILLMER, CALVIN GOURNEAU, COLBY BUCKLES, WENDY TRAUTMAN, MARIA KELLY, ALEXANDRA AYRES, JESSICA UCKER, LARRY KINDALL, DARREN BERG, PAMELA DOKTER, JENNINGS NEW BOLT, Defendants.
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
inmates incarcerated at the South Dakota Women's Prison
in Pierre, South Dakota, filed a joint prose civil rights
lawsuit pursuant to 42 U.S.C. § 1983. Only two of four
plaintiffs filed motions to proceed in forma pauperis and
provided prisoner trust account reports.
policy considerations set forth in the Prison Litigation
Reform Act (PLRA), joint prisoner litigation is generally
disfavored. See Hubbard v. Haley, 262 F.3d 1194
(11th Cir. 2001) (holding that the PLRA preempted Rule 20 so
as to prevent IFP prisoner litigants from litigating
jointly). A few circuits have, however, permitted joint
prisoner litigation. For example, the Third and Seventh
Circuits permit joint prisoner litigation, but they still
require each prisoner litigant to separately pay the entire
$350 filing fee. See Hagan v. Rogers, 570 F.3d 146,
155-56 (3d Cir. 2009); Boriboune v. Berge, 391 F.3d
852, 856 (7th Cir. 2004).
Eighth Circuit has yet to consider how joint prisoner
litigation should be handled under the PLRA. Nonetheless,
after reviewing the reasoning of other circuits and
considering the policy objectives underlying the PLRA, this
Court joins with the well-reasoned opinions of the Third and
Seventh Circuits holding that, although joint prison
litigation will be permitted, each prisoner litigant will be
individually responsible for the full $350 filing fee.
this case is screened pursuant to 28 U.S.C. § 1915A,
plaintiffs are given this warning and opportunity to withdraw
from the lawsuit. Joint filing carries with it the risk of
being held accountable for sanctions pursuant to Rule 11 of
the Federal Rules of Civil Procedure, and the risk of
receiving a strike under 28 U.S.C. § 1915 for the
co-plaintiffs' claims. Accordingly, the following notice
1. You will be legally responsible for knowing precisely what
is being filed in the case on your behalf and the
representations made in those filings. Federal Rule of Civil
Procedure 11(c) provides that sanctions can be imposed for
violating Rule 11(b).
2. You will incur a strike if the action is dismissed as
frivolous, malicious, or for failure to state a claim upon
which relief can be granted. Pursuant to 28 U.S.C. §
1915(g), a prisoner who has had three cases dismissed (three
strikes) for the reasons mentioned above cannot bring a civil
action or appeal unless the prisoner is in imminent danger of
serious physical injury.
3. Regardless whether this case is dismissed or allowed to
proceed after screening, you will be required to pay the
filing fee, either in installments or in full, depending on
whether you qualify for indigent status. If you do not
qualify for indigent status, your claims may be severed from
the case and you will then be required to pay the entire $350
filing fee before your case will proceed.
4. You will be individually responsible for the full $350
filing fee, even if you are granted in forma pauperis status.
If you are granted in forma pauperis status, the institution
having custody of you will be directed that whenever the
amount in your trust account. exceeds $10, monthly payments
that equal 20 percent of the funds credited to the account
the preceding month will be forwarded to the United States
District Court Clerk's office pursuant to 28 U.S.C.
§ 1915(b)(2), until the $350 filing fee is paid in full.
See Boriboune, 391 F.3d at 856 (recommending that
district courts warn prisoners of the potential negative
consequences of joint filing in federal court and give them
an opportunity to withdraw from the lawsuit).
Mary E. Petersen moved for leave to proceed in forma pauperis
and also paid her full filing fee. Doc. 4; Doc. 10. Plaintiff
Nancy Akin moved for leave to proceed in forma pauperis, but
now moves to dismiss herself from the case. Her motion is
granted. Doc. 8; Doc. 11.
that Melissa Boyer and Venessa Joven shall advise the Court
whether they wish to continue as plaintiffs in this case by
January 2, 2017. If either opts not to continue as a
plaintiff in this case, or if they do not respond to this
order, then they will be dismissed as plaintiffs in this
FURTHER ORDERED that if Boyer or Joven opts to proceed, they
. must file a motion to proceed in forma pauperis and a