United States District Court, W.D. Wisconsin
JOSHUA J. SCOLMAN, KAMAU T.Z. DAMALI, ROBERT JAY WARD, DENNIS MIX, FREDERICK ANDREW MORRIS, SCOTT A. BROWN, TIMOTHY SIDNEY and JOVAN WILLIAMS, Plaintiffs,
SCOTT WALKER, JON LITSCHER, JAMES GREER, DAVID BURNETT, M.D., KEVIN KALLAS, M.D., DAI ADMINISTRATOR, WARDENS OF CCI, WCI, GBCI and WSPF, SECURITY DIRECTORS OF CCI, WCI, GBCI and WSPF, PSU DIRECTORS OF CCI, WCI, GBCI and WSPF, HSU MANAGERS OF CCI, WCI, GBCI and WSPF and UNNAMED JOHN AND JANE DOES, Defendants.
OPINION and ORDER
BARBARA B. CRABB District Judge
court has received a proposed civil complaint submitted by
Peg Swan on behalf of eight prisoners incarcerated at various
prisons within the Wisconsin Department of Corrections. The
complaint raises several claims relating to the treatment of
prisoners who are held in solitary confinement. In a cover
letter, Swan identifies herself as an advocate for prisoners
and says that she drafted the complaint with the assistance
of “prisoner litigators.” Dkt. #1-12. Swan says
she then sent the complaint to each of the named plaintiffs
for their review, along with a form titled
“Verification of Complaint and Permission to Submit
Documents and Pleadings on Behalf -and at the Direction of-
Plaintiffs.” Dkt. #1-1. With the exception of plaintiff
Robert Ward, each plaintiff signed the form, which states
that plaintiffs have read the complaint and attest to the
veracity of the allegations relating to them. The form also
purports to give Swan permission to submit documents on
plaintiffs' behalf. Swan submitted a check for $400,
which she says is for the filing fee for this lawsuit. As
discussed below, this case cannot proceed until each
plaintiff confirms that he wishes to prosecute this action
jointly and pays the filing fee for doing so.
Rule 11 and Submissions by Peg Swan
Rule 11 of the Federal Rules of Civil Procedure, each
plaintiff must sign every pleading, written motion and other
paper submitted on his or her behalf. Fed.R.Civ.P. 11(a). In
this instance, although plaintiffs signed a
“Verification of Complaint” form, this is not
sufficient. The form states that each plaintiff is attesting
to the veracity of conditions that applied to him personally.
However, when two or more prisoners join their claims in one
lawsuit, each prisoner who signs the complaint attests to the
validity of all of the individual claims in the complaint,
whether or not they concern him personally. Thus, any
plaintiff who wishes to prosecute this case jointly must sign
the complaint itself, understanding that by doing so, he is
attesting to the truthfulness the entire complaint.
each plaintiff should be aware that by joining this lawsuit,
he will be held legally responsible for knowing precisely
what is being filed in the case on his behalf. This means
that each plaintiff may be subject to sanctions under Rule 11
for any pleading, motion or other paper filed over his name
if such sanctions are imposed as to any aspect of the case.
“Verification of Complaint” form also states that
plaintiffs are granting permission to Peg Swan to
“electronically sign” documents on their behalf.
However, Swan has not identified herself as either an
attorney or a party in this case and thus, has no authority
to sign or electronically file documents on behalf of
plaintiffs. Additionally, because plaintiffs are
incarcerated, it is not likely that they have access to the
technology needed to enable electronic signatures. Although
Swan may submit documents that have been reviewed and signed
by plaintiffs, she may not sign documents on their behalf.
Because Swan is not a party or attorney, the court will not
consider any document submitted by Swan that is not signed by
each plaintiff who joins this case.
plaintiffs have joined their claims in one complaint, each is
bringing an action subject to the 1996 Prison Litigation
Reform Act and each must either pay the full $400 fee for
filing the action before it may proceed or be granted leave
to proceed in forma pauperis without paying the full fee.
Boriboune v. Berge, 391 F.3d 852, 856 (7th Cir.
2004). At this point, the court has neither received the
filing fee from any plaintiff or received any motion to
proceed in forma pauperis. (Peg Swan submitted a check for
$400 for the filing fee. However, because she is not a party,
that check will be returned to her.) Each plaintiff may have
three weeks to submit the full filing fee or a motion to
proceed in forma pauperis, along with a certified trust fund
account statement for the six month period preceding the
complaint. 28 U.S.C. § 1915(a)(2). For any plaintiff who
is indigent, the court will calculate the amount of the
initial partial payment that must be paid before the court
can screen the merits of the complaint under 28 U.S.C. §
1915A. Thereafter, each plaintiff will be required to pay the
balance of the filing fee in installments.
plaintiffs have submitted signed copies of the complaint and
either paid the filing fee or received permission to proceed
in forma pauperis, I will screen the complaint under 28
U.S.C. § 1915A. In screening the complaint, I will
consider whether the claims relating to one plaintiff should
be separated from the claims of other plaintiffs. If I decide
separation (or severance) is appropriate, any plaintiff whose
claims are severed will be required to prosecute his claims
in a separate lawsuit.
should also be aware that if the court finds that the entire
action is legally frivolous (meaning completely without
merit) or malicious or that it fails to state a claim upon
which relief may be granted, the court will be required to
record a strike under 28 U.S.C. § 1915(g) against each
plaintiff named in the caption of the action. (A litigant who
incurs a total of three strikes for filing meritless actions
cannot file in forma pauperis in any case except one in which
he alleges that he is in immediate danger.)
because all of the plaintiffs did not sign the complaint and
may not have been aware of the consequences of joining their
claims in one lawsuit, I will give each plaintiff an
opportunity to withdraw from the suit if that is his wish. If
a plaintiff chooses to withdraw from the lawsuit, then he
will not have to pay the $400 filing fee. Similarly, should a
plaintiff fail to respond to ...