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Oldchief v. Birdrattler

United States District Court, D. Montana, Great Falls Division

July 5, 2018

JOHNNY OLDCHIEF, Plaintiff,
v.
KEN BIRDRATTLER, ISIA WEBER, THE STATE OF MONTANA, and UNITED STATES OF AMERICA, Defendants. MAYNARD OLDCHIEF, Plaintiff,
v.
KEN BIRDRATTLER, ISIA WEBER, THE STATE OF MONTANA, and UNITED STATES OF AMERICA, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          John Johnston United States Magistrate Judge

         Plaintiffs Johnny OldChief and Maynard OldChief filed a Complaint alleging they were falsely arrested on July 16, 2017. As this Court does not allow pro se prisoner plaintiffs to proceed in a single action together, the cases are severed. The motions to proceed in forma pauperis will be granted but Plaintiffs' claims are barred by the doctrine set forth in Heck v. Humphrey, 512 U.S. 477 (1994). These matters should be dismissed.

         I. MOTION TO PROCEED IN FORMA PAUPERIS

         Because they are incarcerated, Plaintiffs must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The initial partial filing fees will be waived and Plaintiffs may proceed with their own case. See Bruce v. Samuels, 136 S.Ct. 627, 629 (2016)(“the initial partial filing fee may not be exacted if the prisoner has no means to pay it, § 1915(b)(4)”). Plaintiffs will be required to pay the fee in installments and make monthly payments of 20% of the preceding month's income credited to their prison trust accounts. The percentage is set by statute and cannot be altered. 28 U.S.C. § 1915(b)(2). Plaintiffs must make these monthly filing-fee payments simultaneously with the payments required in any other cases he has filed. Id. By separate order, the Court will direct the facility where Plaintiffs are held to forward payments from Plaintiffs' accounts to the Clerk of Court each time the account balance exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

         II. ALLEGATIONS

         Plaintiffs allege Defendants Ken BirdRattler and Isia Weber conducted an warrantless arrest, used excessive force, entered private property without probable cause, falsely arrested Plaintiffs, and prepared a false incident report which caused Plaintiffs to face lengthy sentences had they elected to proceed to a jury trial, compelling both to enter a plea agreement. (Complaint, Doc. 1 at 1-2.)

         III. SEVERANCE

         Plaintiffs will be required to proceed separately on their own claims. Rule 21 of the Federal Rules of Civil Procedure provides that “[o]n motion or on its own, the court may at any time, on just terms, add or drop a party . . . [or] sever any claim against a party.” Fed.R.Civ.P. 21. Courts have broad discretion regarding severance. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1297 (9th Cir. 2000).

         Courts disagree as to whether it is permissible for multiple pro se prisoner-plaintiffs to join their claims together in one action or whether each plaintiff must pursue a separate action. The Ninth Circuit has not addressed the issue. The Third and Seventh Circuits have allowed multiple prisoner-plaintiffs to proceed together under Rule 20 of the Federal Rules of Civil Procedure's permissive joinder rule. See Hagan v. Rogers, 570 F.3d 146, 152-57 (3rd Cir. 2009); Boriboune v. Berge, 391 F.3d 852, 856 (7th Cir. 2004). The Eleventh Circuit in Hubbard v. Haley, 262 F.3d 1194, 1197-98 (11th Cir. 2001), however, precluded multiple-prisoner plaintiffs from proceeding under Rule 20. See Hubbard, 262 F.3d at 1198.

         Finding the reasoning of the Hubbard case more persuasive, it has been the practice in this District to not allow multiple pro se prisoner-plaintiffs to proceed together in a single action. See, e.g., United States Magistrate Judge Carolyn Ostby's Orders in Brown v. Schweitzer, et al., CV-05-28-H-DWM-CSO (D.Mont. June 9, 2005); Swenson v. MacDonald, No. CV 05-93-GF-SEH-CSO (D. Mont. Jan. 30, 2006); and the undersigned's Order in Worm v. Berkebile, et al., No. CV 15-00031-GF-BMM-JTJ (D. Mont. June 16, 2015) and Allison v. Parole Board Director, et al., No. CV 17-00006-H-DMM-JTJ (D. Mont. December 12, 2016).

         There are several reasons for this practice. First, 28 U.S.C. § 1915(b)(3) 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.” The Court in Hubbard reasoned that the permissive joinder rule in Rule 20 of the Federal Rules of Civil Procedure “actually conflicts” with the PLRA's requirement that prisoner-plaintiffs pay the full filing fee. 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; c.f. Hagan, 570 F.3d at 155 (having each joined IFP litigant to pay a full filing fee by installment harmonizes the PLRA with Rule 20 and § 1915(b)).

         Despite the contrary authority in Hagan, this Court believes that Hubbard presents the stronger argument. 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.” 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. If each plaintiff is required to pursue their 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.

         The second reason for not allowing multiple pro se prisoners to proceed together in one action is based upon Rule 11 of the Federal Rules of Civil Procedure which provides:

By presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating it--an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Fed. R. Civ. P. 11(b). 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. A prisoner litigating jointly under Rule 20 takes those risks for all claims in the complaint, whether or not they concern him personally. Rule 11 requires all unrepresented plaintiffs to sign the complaint, and the signature conveys all the representations specified by Rule 11(b) for the entire complaint. 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 ...


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