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Ofori v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

September 12, 2019

TERRY K. OFORI, et al., Plaintiffs,
HAROLD W. CLARKE, et al., Defendants.



         Plaintiffs, fifteen Virginia inmates proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983. In it, they assert a variety of claims, many of which are related to conditions at Wallens Ridge State Prison (“WRSP”), where they are housed. The complaint consists of more than 100 pages, more than 200 numbered paragraphs, names nearly fifty defendants, and contains nine counts, most of which incorporate multiple claims. For example, Count II is titled “Being subjected to unsafe conditions, ” but it challenges a number of diverse conditions, including failing to provide safe access to the top bunk; subjecting inmates to conditions and situations that allow them to be “exposed to voyeurism and/or sexual misconduct”; lack of access to water fountains and toilets during outside recreation; cell assignments; cross-contamination from inmates' possessions due to gloves used during inspections; and other claims. Similarly, Count III, titled “Unlawful deprivation” incorporates eleven separate claims, including challenges to: an alleged lack of access to publications and microwaves, a policy prohibiting inmates with recent disciplinary charges from ordering food from outside vendors, and other claims. Other claims include Count IV, titled “Being subjected to a hostile environment, ” Count V, which asserts various violations of religious rights, Count VI, which claims plaintiffs are being denied legal access, and Count IX, which alleges retaliation. (See generally Compl. Dkt. No. 1.) All of the named plaintiffs signed the complaint.[1]

         The court conditionally filed the action and assessed a filing fee against each plaintiff, directing each plaintiff either to pay the filing fee or to comply with certain requirements to request to proceed in forma pauperis. The order warned that a failure to comply with those directions could result in the dismissal of the plaintiff's case without prejudice. (Dkt. No. 5.)

         Since that time, twelve of the plaintiffs failed to file the requested forms, and the court dismissed their claims without prejudice, terminating them from this case. (Dkt. Nos. 20-30, 42.) Three of the plaintiffs (Ofori, Whitlock, and Mateen) sent in the proper paperwork, and Ofori, the first-named plaintiff, has paid the entire $400 filing fee. Thus, the action remains pending as to those three plaintiffs.

         A number of motions have been filed in the case, and the court turns now to them.

         1. Ofori's Motion for Reconsideration (Dkt. No. 41)

         a. Joinder of Prisoner Plaintiffs

         In his motion for reconsideration, signed only by plaintiff Ofori, Ofori asks the court to reconsider its dismissal orders (Dkt. Nos. 20-30) as to eleven of the other plaintiffs. (Dkt. No. 41.) He explains that he believed that he and his fellow plaintiffs would only be required to pay a single filing fee in this case. He also has filed multiple letters asking for clarification of this issue. (E.g., Dkt. Nos. 38, 39-1, 44.)

         First of all, as this court has noted, Ofori cannot sign pleadings on behalf of other pro se litigants asking for relief on their behalf. His motion for reconsideration is not signed by any of the dismissed plaintiffs. It could be denied on that ground alone. But the court believes it is prudent to address the issue raised by him in his motion and in his letters: whether a single filing fee or multiple filing fees (one for each plaintiff) should be assessed in this case. This also implicates a related issue: whether multiple prisoner plaintiffs are allowed to join in one action under Federal Rule of Civil Procedure 20.

         The court's research has not disclosed any Supreme Court decision or Fourth Circuit decision directly addressing these two issues, and other circuits have taken varying approaches.

         As to the threshold issue of whether it is permissible for multiple prisoner plaintiffs to join in a single suit, nearly all circuits to have addressed the issue conclude that nothing prohibits the joining of multiple prisoner plaintiffs in a single suit. The Eleventh Circuit, however, has held that in the context of prisoner litigation governed by the PLRA, the PLRA bars permissive joinder of multiple prisoner plaintiffs in one civil rights action. Hubbard v. Haley, 262 F.3d 1194, 1198 (11th Cir. 2001). Many district courts within the Fourth Circuit have followed Hubbard on this issue. E.g., Sutcliffe v. Cain, C/A No. 4:16-2939-MBS-TER, 2016 WL 4804069, at *1 (D.S.C. Sept. 13, 2016) (concluding that eight prisoners could not join in one action, expressly agreeing with Hubbard, and citing to cases from other district courts within the Fourth Circuit holding the same); see also Griffin v. Nettles, No. 4:18-cv-02469, 2018 WL 4701293, at *1-2 (D.S.C. Sept. 28, 2018) (separating claims of two plaintiffs for initial review and citing to numerous cases from the U.S. District Court for the District of South Carolina following Hubbard).

         Having carefully reviewed Hubbard, as well as other cases on this topic, the court finds more persuasive the Seventh Circuit's approach in Boriboune v. Berge, 391 F.3d 852, 855-56 (7th Cir. 2004). The Boriboune court acknowledged that “joint litigation could undermine the system of financial incentives created by the” Prison Litigation Reform Act (“PLRA”), but nonetheless held that if Rule 20's joinder requirements were met, then multiple prisoner plaintiffs could join in a single case. Id. The Seventh Circuit explained that a conclusion like the Hubbard court's-that multiple prisoner plaintiffs are precluded by the PLRA-was necessarily premised on a determination that the PLRA had either superseded or implicitly repealed Rule 20. See Id. at 854-55. As Boriboune explained, though, “the PLRA does not repeal or modify Rule 20, ” implicitly or otherwise. Id. at 855.

         Accordingly, and following Boriboune, the court concludes that the PLRA does not prohibit the joining of multiple prisoners as plaintiffs under Rule 20. The court notes, however, as did the Third Circuit in Hagan v. Rogers, 570 F.3d 146, 157 (3d Cir. 2009), that the district court has “broad authority with regard to joinder under Rule 20, which is, after all, discretionary.” See also Boriboune, 391 F.3d at 854 (explaining that if a civil case-prisoner or non-prisoner-is complex, “the rules provide palliatives: severance or pretrial orders providing for a logical sequence of decision”). So, while the mere fact that plaintiffs are prisoners does not preclude them joining if they otherwise satisfy Rule 20, that fact can be considered in determining whether joinder is appropriate in any given case.

         Here, the type of problems that concerned the Hubbard court over joined prisoner plaintiffs are problems that this court is already encountering in this case, such as one plaintiff repeatedly submitting motions on behalf of others. Indeed, practical considerations strongly militate against allowing multiple prisoner plaintiffs to jointly file and pursue a single civil action. As in all prison cases, a high likelihood exists that circumstances, such as cell reassignments, lockdowns, or personal disagreements, will often prevent plaintiffs from preparing and signing joint pleadings as required in pro se litigation. A joint lawsuit also creates a ...

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