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Barber v. Frakes

United States District Court, D. Nebraska

August 30, 2018

RAYSEAN BARBER, and GUY COLLINS, Plaintiffs,
v.
SCOTT FRAKES, TAGGART BOYD, TED HILL, MIKI HOLLISTER, KRISTINA MILBURN, NATE SHWAB, DR. MARK LUKIN, DR. MEGAN FORD, BETTY GERGEN, JACQUE GOODING, AMY REZNEY, and ROBIN CHURCH, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         This matter is before the court for case management. Raysean Barber (“Barber”) is currently incarcerated at the Tecumseh State Correctional Institution (“TSCI”) in Tecumseh, Nebraska. (See Filing No. 4.) He filed a Complaint (filing no. 1) on August 27, 2018, concerning prison conditions at the Lincoln Correctional Center (“LCC”). The Complaint was signed by Barber and one other prisoner, Guy Collins (“Collins”), who is housed at the LCC.

         Prisoners are allowed to file joint civil rights complaints in this district if the criteria of permissible joinder under Federal Rule of Civil Procedure 20 are satisfied. However, pursuant to the Prison Litigation Reform Act, each prisoner in a joint action must pay the full civil filing fee. See Cole v. Houston, No. 4:06cv3314, 2007 WL 1309821 (D. Neb. March 30, 2007). In other words, each prisoner in a joint action must pay the full civil filing fee, just as if he had filed the suit individually.

         Because not every prisoner is likely to be aware of the potential negative consequences of joining group litigation in federal courts, this court will alert Plaintiffs to the individual payment requirement, as well as other risks they face in joint pro se litigation. Therefore, the court offers Plaintiff Collins[1] an opportunity to withdraw from this litigation before the case progresses further. Collins may wish to take the following points into consideration when making his decision:

         • He must pay the full $350 filing fee, either in installments or in full, regardless of whether this action is dismissed, severed, or allowed to proceed as a group complaint.

         • 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 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 will be required to prosecute his claims in a separate action and pay a separate filing fee for each new action.

         Plaintiffs must note that any proposed amended complaint or other document filed on behalf of multiple Plaintiffs must be signed by each of the Plaintiffs. As long as Plaintiffs appear without counsel in this action, each Plaintiff must sign documents for himself. See Fed.R.Civ.P. 11. A non-attorney cannot file or sign papers for another litigant. Plaintiffs are WARNED that future group motions or pleadings that do not comply with this requirement shall be stricken pursuant to Rule 11(a).

         IT IS THEREFORE ORDERED that:

         1. The non-lead Plaintiff, Collins, shall have 30 days from the date of entry of this order in which to advise the court whether he wishes to continue as a Plaintiff in this group action. If, by that deadline, Collins advises the court that he does not wish to participate in the action, he will be dismissed from the lawsuit and will not be charged a filing fee for this action.[2] This is the only way to avoid the obligation to pay a filing fee for this action.

         Alternatively, if any Plaintiff (including lead Plaintiff Barber) wants to pursue his claims individually in a separate lawsuit, he shall so advise the court in writing, and his claims shall be severed into a new action where a filing fee will be assessed.

         2. If non-lead Plaintiff, Collins, chooses to continue as a Plaintiff, either in this action or in a severed individual case, he is hereby ORDERED to pay a fee of $400.00[3] or file a properly completed motion for leave to proceed in forma pauperis (IFP) within 30 days from the date of this ...


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