                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-19-2009

Hagan v. Rogers
Precedential or Non-Precedential: Precedential

Docket No. 07-1412




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                                    PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              _____________

                  No. 07-1412
                 _____________


   LEWIS IRA HAGAN; JAMES HEMPHILL;
  EFRAIM ESQUILIN; CHRISTOPHER MARK;
  WILLIAM WEISS; CHRISTOS PAPACRISTOS;
LOUIS GEORGE JOHNSTON, JR.; TYMIL MASON;
     CLAUDE FRANKLIN; PETER BRAUN;
     OLIVER MASON; TOBORIS WRIGHT;
    RONALD YOUNG; ALLAN LOVENSON,
                            Appellants

                       v.

        GRACE ROGERS, Administrator;
             GEORGE HAYMAN,
     Commissioner New Jersey State Prisons;
              DR. HOCHBERG,
Doctor Employed By Correctional Medical Services;
 CORRECTIONAL MEDICAL SERVICES, INC.;
   BERNARD GOODWIN, Asst. Administrator

                 _____________
      On Appeal from the United States District Court
               for the District of New Jersey
               (D.C. Civil No. 06-cv-05033)
       District Judge: Honorable Stanley R. Chesler
                      _____________

                 Argued February 3, 2009

 Before: RENDELL, JORDAN, and ROTH, Circuit Judges

                  (Filed: June 19, 2009 )



Lewis Ira Hagan (pro se)
James Hemphill (pro se)
Efraim Esquilin (pro se)
William Weiss (pro se)
Christos Papacristos (pro se)
Louis George Johnston, Jr. (pro se)
Tymil Mason (pro se)
Claude Franklin (pro se)
Peter Braun (pro se)
Toboris Wright (pro se)
Allan Lovenson (pro se)
Adult Diagnostic & Treatment Center
8 Production Way
P. O. Box 190
Avenue, NJ 07001




                            2
Christopher Mark (pro se)
Rockview SCI
P. O. Box A
Bellefonte, PA 16823

Oliver Mason (pro se)
Apartment 1114
180 South Orange Street
Newark, NJ 07103

Ronald Young (pro se)
49 Autumn Court
Ledgewood, NJ 07852

Joel McHugh, Esq. [ARGUED]
Nancy Winkelman, Esq.
Schnader Harrison Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, PA 19103

Counsel for Appellants
Lewis Ira Hagan; James Hemphill; Efraim Esquilin;
Christopher Mark; William Weiss; Christos Papacristos;
Louis George Johnston, Jr.; Tymil Mason; Claude Franklin;
Peter Braun; Oliver Mason; Toboris Wright; Ronald Young;
Allan Lovenson




                            3
Larry R. Etzweiler, Esq. [ARGUED]
Keith S. Massey, Jr., Esq.
Office of Attorney General of New Jersey
Division of Law
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Counsel for Defendant - Amicus Curiae
 State of New Jersey



                         __________

                 OPINION OF THE COURT
                       __________



RENDELL, Circuit Judge.

        The central question before this Court is whether it is
clear and manifest that Congress, through the Prisoner Litigation
Reform Act of 1995, intended to remove prisoners from the
definition of “Persons” permitted to join claims under Federal
Rule of Civil Procedure 20. We answer this question in the
negative.




                               4
        Appellants are fourteen state inmates of the Adult
Diagnostic & Treatment Center in Avenel, New Jersey
(“ADTC”). The prisoners jointly filed a single complaint, on
behalf of themselves and a purported class, alleging that
officials associated with the facility violated their constitutional
rights by failing to contain and treat a serious and contagious
skin condition. The prisoners requested in forma pauperis
(“IFP”) status and the appointment of counsel. Before the
Defendants had been served, the District Court for the District
of New Jersey dismissed thirteen of the prisoners sua sponte,
with leave to file amended individual complaints, after
concluding that prisoners were barred from permissive joinder
under Federal Rule of Civil Procedure 20 (“Rule 20”) The Court
also denied class certification under Federal Rule of Civil
Procedure 23 (“Rule 23”). Appellants challenge both decisions
on appeal.

       This appeal presents several issues. First, we must
determine whether we have jurisdiction to review the District
Court’s order denying joinder, and if so, whether IFP prisoners
are barred from Rule 20 joinder as a matter of law. We are also
asked to decide whether to exercise jurisdiction over the District
Court’s denial of class certification, and if so, whether the denial
was proper.

       For the reasons discussed below, we conclude that we
have jurisdiction to review the District Court’s order denying
joinder, and that IFP prisoners are not categorically barred from


                                 5
joining as plaintiffs under Rule 20. Furthermore, filing fees
should be assessed against any plaintiff permitted to join under
Rule 20 as though each prisoner was proceeding individually.
Finally, we elect to exercise jurisdiction over the class
certification question, and conclude that the District Court’s
explanation for denying certification was inadequate. We will
accordingly remand the matter for further proceedings consistent
with this opinion.

                        I. Background

        Appellants filed a single pro se complaint on October 20,
2006 in the U.S. District Court for the District of New Jersey,
against officials associated with the ADTC, a state facility for
the detention and treatment of convicted sex offenders. The
prisoners allege that the Defendants violated their Eighth and
Fourteenth Amendment rights by failing to address the threat of
a serious and undiagnosed contagious skin disease, possibly
scabies, spreading through the facility. Appellants also moved
to certify a class of all persons similarly situated pursuant to
Rule 23(b)(3). The prisoners requested IFP status and applied
for the appointment of counsel.

       Before Defendants had been served, the District Court
issued an order sua sponte on January 25, 2007, dismissing
without prejudice all Plaintiffs, except Lewis Hagan, upon
concluding that permissive joinder was unavailable to IFP
prisoner litigants. The Court suggested that Rule 20 joinder may


                               6
be preempted by certain provisions of the Prison Litigation
Reform Act of 1995 (“PLRA”). Pub. L. 104-134, 110 Stat.
1321 (Apr. 26, 1996). The Court was also persuaded by the
reasoning of other district courts that had determined that
general circumstances of incarceration render joint prisoner
litigation impractical. The Court did not discuss whether the
Plaintiffs satisfied the basic requirements of joinder under the
Rule, nor did it identify any circumstances of incarceration that
rendered Plaintiffs’ joinder impractical. The Court ordered a
new case to be opened for each dismissed Plaintiff, and gave
each prisoner 30 days to file an amended complaint in order to
proceed individually. The Court deferred consideration of the
requests for IFP status and for the appointment of counsel
pending the filing of the amended complaints.

       In the same sua sponte order, the District Court also
denied Appellants’ motion to proceed as a class action pursuant
to Rule 23(b)(3). The Court identified concerns regarding the
typicality of the named Plaintiffs’ claims and the prisoners’
disparate factual circumstances, particularly with regard to
medical needs and injury. The Court also reasoned that a pro se
prisoner litigant could not represent a class of fellow inmates.

       None of the Plaintiffs filed amended complaints within
the requisite 30 days, but all joined in appealing to this Court for
review of both the joinder and class certification rulings. On
February 1, 2007, Appellants also filed a motion to stay all
action relating to the District Court’s January 25 order, and


                                 7
asserted their belief that the Court’s applications of Rules 20 and
23 were incorrect. On May 4, 2007, after the original 30-day
period for amendment had expired, the District Court granted a
stay and stated in its order that Appellants would have 30 days
to file amended complaints after we completed our review of
their appeal.

        We assigned counsel as amicus curiae on behalf of
Appellants and asked counsel to address the following
questions: (1) Whether this Court has jurisdiction to review the
District Court’s order denying joinder; (2) if so, whether
prisoners are barred from Rule 20 joinder as a matter of law;
(3) if prisoners are not barred from permissive joinder, how
court fees should be assessed among the joint plaintiffs; and
(4) whether the District Court improperly denied class
certification. Although Defendants have not yet been served, we
invited the Attorney General of New Jersey to similarly respond
to these questions through an amicus brief, and she has done so.
We address each of the questions presented below.

                      II. Rule 20 Joinder

A. Jurisdiction

       Appellants seek review of the District Court’s order
denying joinder and dismissing all claimants except Hagan
without prejudice, and with leave to amend. The only arguable
basis for this Court to review the decision is 28 U.S.C. § 1291,


                                8
which authorizes appellate jurisdiction over final orders of the
district courts. Welch v. Folsom, 925 F.2d 666, 667 (3d Cir.
1991). “A final order is one that ‘ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment.’” Id. at 668 (quoting Coopers & Lybrand v. Livesay,
437 U.S. 463, 467 (1978)).

        While an order dismissing a complaint without prejudice
is normally not final within the meaning of § 1291, “a dismissal
with leave to amend will be treated as a final order if the
plaintiff has elected to stand upon the original complaint.”
Frederico v. Home Depot, 507 F.3d 188, 192 (3d Cir. 2007)
(internal quotation omitted). Appellants argue that the order
was final because the prisoners chose to stand on their initial
complaint, rather than filing amended complaints to proceed
individually. Respondents counter that the prisoners did not
stand on their complaint because they requested and received a
stay of the District Court’s order pending the resolution of this
appeal.

       We cannot discern from our prior cases a clear rule for
determining when a party has elected to stand on his or her
complaint. In Frederico, we determined that a plaintiff elected
to stand on her complaint where at no time during the
proceedings did she seek to correct the purported pleading
deficiencies, but instead repeatedly asserted that her complaint
was sufficient as filed. Id. at 192. In Batoff v. State Farm
Insurance Co., 977 F.2d 848 (3d Cir. 1992), we determined that


                               9
we had jurisdiction when a plaintiff did not amend his
dismissed complaint within the 30 days allotted by the district
court. Id. at 851 n.5. We were also satisfied that certain
plaintiffs in Tiernan v. Devoe, 923 F.2d 1024 (3d Cir. 1991),
elected to stand on their dismissed claims after they renounced,
by letter briefs filed with this Court, any intention to reinstitute
proceedings against the defendants at issue. Id. at 1031.

       There is no question that none of the prisoners amended
their complaints within the 30 days ordered by the District
Court. All of the Plaintiffs joined the instant appeal, and there
is no evidence that any ever wavered from their argument that
they should be permitted to join under Rule 20. These
circumstances indicate that the Appellants stand on their initial
complaint, as had the plaintiffs in Frederico and Batoff. A
potentially distinguishing aspect of this case is that the
Appellants sought, and the District Court granted, a stay of its
January 25 order that apparently would preserve the rights of
Appellants to proceed individually if they lost on the Rule 20
issue here. Although none of the Appellants filed amended
complaints within 30 days of the order, they all joined in
requesting a stay of that order on February 1, 2007.

       Yet the District Court did not grant the stay until May 4,
2007, long after the 30 days afforded to the Plaintiffs had
expired. From the expiration of the dismissal order granting
leave to amend until the grant of the stay, the Plaintiffs were in
the same position as the plaintiff in Batoff. If they were not


                                10
intent on staking their claims on the fate of this appeal, they
would have been expected to file amended complaints as the
deadline neared, in the absence of a ruling on the requested stay.
After the 30 days expired, the subsequent issuance of the stay –
which included a further right to amend – was a fortuitous
development outside of their control. We are persuaded that the
Plaintiffs have sufficiently demonstrated their intent to stand on
their original complaint.

        Moreover, by requesting the stay, Appellants were
squarely stating their opposition to District Court’s
interpretation of Rule 20, and their desire to proceed jointly.
The Court’s invitation to the prisoners to amend and proceed
individually directly contradicted their position on appeal. This
situation is different from a typical dismissal with leave to
amend where the amendment could cure a particular pleading
flaw or failure. This is also different from a typical joinder
situation in which a court might grant or deny a motion to
amend a complaint in order to add plaintiffs. See Michelson v.
Citicorp Nat’l Servs., Inc., 138 F.3d 508, 512 (3d Cir. 1998).
Here, the District Court effectively ruled the joint complaint
legally inadequate, and subsequent individual pleading by
Appellants would have effectively conceded the joinder issue.
This should be viewed as the type of situation where jurisdiction
exists under § 1291 because there is nothing a plaintiff can due
to cure the defect in a dismissed complaint. Deutsch v. United
States, 67 F.3d 1080, 1083 (3d Cir. 1995). The District Court’s



                               11
ruling foreclosed further joint action, and Plaintiffs could do
nothing to cure this purported defect.

       For these reasons, we conclude that we have jurisdiction
under § 1291.

B. Rule 20 and IFP Prisoner Litigants

        Appellants argue that the District Court erred in
concluding that prisoners were categorically barred from joining
as plaintiffs under Rule 20. Amicus for Respondents contends
that the District Court interpreted Rule 20 correctly, in light of
certain provisions of the PLRA, and in consideration of the
unique circumstances of incarceration. We conclude that
nothing in the PLRA demonstrates that Congress intended to
alter the plain language of Rule 20, and that conditions of
incarceration should not be considered in disregarding the
unambiguous language of the Rule. Accordingly, prisoner
litigants may not be categorically precluded from joining as
plaintiffs under Rule 20.

        A district court’s order severing parties for failure to
satisfy the joinder requirements of Rule 20 is reviewed for abuse
of discretion. Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir.
1997). A district court abuses its discretion when “its decision
rests upon a clearly erroneous finding of fact, an errant
conclusion of law or an improper application of law to fact.”
Danvers Motor Co., Inc. v. Ford Motor Co., 543 F.3d 141, 147


                               12
(3d Cir. 2008) (internal quotation marks omitted). The District
Court’s order denying joinder was not based on any findings
regarding the particular plaintiffs in the case or the parameters
of Rule 20 itself. Instead, the Court concluded that the prisoners
were barred from joinder in light of certain statutory provisions
and general circumstances of incarceration. Thus, the operative
question is whether the District Court based its order on an
erroneous conclusion of law.

       The language of Rule 20 that is pertinent to this matter is
plain and unambiguous:

       Persons may join in one action as plaintiffs if:

       (A) they assert any right to relief jointly,
       severally, or in the alternative with respect to or
       arising out of the same transaction, occurrence, or
       series of transactions or occurrences; and

       (B) any question of law or fact common to all
       plaintiffs will arise in the action.

Fed. R. Civ. P. 20(a)(1). For courts applying Rule 20 and
related rules, “the impulse is toward entertaining the broadest
possible scope of action consistent with fairness to the parties;
joinder of claims, parties and remedies is strongly encouraged.”
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724
(1966). Rule 20 permits “the joinder of a person who has some


                               13
interest in an action . . . , even when that interest is not so strong
as to require his joinder” under Rule 19.                    Field v.
Volkswagenwerk AG, 626 F.2d 293, 299 (3d Cir. 1980).
Nothing in the plain language of the Rule indicates that
prisoners are excluded as “persons” permitted to join as
plaintiffs.

        The District Court did not apply Rule 20 by determining
whether Appellants’ claims arise from “the same transaction,
occurrence, or series of transactions or occurrences,” or whether
there was “any question of law or fact common to all plaintiffs.”
Fed. R. Civ. P. 20(a)(1).1 Instead, the Court relied on arguments
raised by other courts suggesting that prisoners are categorically
excluded from Rule 20. These arguments fall into two general
categories: (1) With the enactment of the PLRA, Rule 20 has
effectively been modified to exclude prisoner litigants; and
(2) characteristics of prison populations render prison litigants
ill-suited for Rule 20 joinder. We address these arguments in
turn.

       1. Rule 20 and the PLRA

       The two provisions of the PLRA that have troubled other
courts in the context of joinder of claims are codified as
28 U.S.C. §§ 1915(b) and 1915(g). Section 1915(b) provides


  1
   In fact, it would appear that the claims asserted here would
normally be good candidates for joinder.

                                 14
that “if a prisoner brings a civil action or files an appeal in forma
pauperis, the prisoner shall be required to pay the full amount of
a filing fee.” § 1915(b)(1). Payment of the full fee may be
spread over a number of monthly payments. § 1915(b)(2).
Respondents argue that collecting full fees from multiple joint
litigants to comply with § 1915(b)(1) would conflict with
§ 1915(b)(3), which provides, “In no event shall the filing fee
collected exceed the amount of fees permitted by statute for the
commencement of a civil action or an appeal of a civil action or
criminal judgment.” § 1915(b)(3).

       Section 1915(g) limits the availability of IFP status to
prisoners through a “three strike” rule, which provides:

       In no event shall a prisoner bring a civil action or
       appeal a judgment in a civil action or proceeding
       under this section if the prisoner has, on 3 or more
       prior occasions, while incarcerated or detained in
       any facility, brought an action or appeal in a court
       of the United States that was dismissed on the
       grounds that it is frivolous, malicious, or fails to
       state a claim upon which relief may be granted,
       unless the prisoner is under imminent danger of
       serious physical injury.

§ 1915(g). A district court is obligated to dismiss a case sua
sponte upon finding it, inter alia, frivolous or malicious, or that
it fails to state a claim. 28 U.S.C. § 1915(e)(2).


                                 15
         The District Court did not expressly decide that there was
a conflict between § 1915(b) and Rule 20, but referred to
tensions between the provisions identified by other courts. The
Court of Appeals for the Eleventh Circuit has held that
§ 1915(b)(1) preempted Rule 20 as to IFP prison litigants in
Hubbard v. Haley, 262 F.3d 1194 (11th Cir. 2001). The court
reasoned that, by plainly requiring each IFP prisoner to pay the
full filing fee, § 1915(b)(1) repealed Rule 20 joinder as to IFP
prisoner litigants. Id. at 1198. The court was persuaded by
Congress’s desire to deter frivolous suits, and the recognition by
other courts that excessive prisoner litigation presented a
problem. Id.

       However, decisions from the Courts of Appeals for the
Sixth and Seventh Circuits are at odds with Hubbard. In a sua
sponte administrative order addressing the effects of the PLRA,
the Chief Judge of the Sixth Circuit ordered that filing fees are
to be divided among prisoner litigants choosing to join in suits,
thus indicating that prisoners were not barred from doing so. In
re Prison Litigation Reform Act., 105 F.3d 1131, 1137-38 (6th
Cir. 1997). The Court of Appeals for the Seventh Circuit
engaged in a more thorough analysis when it reversed a district
court’s interpretation of Rule 20 in Boriboune v. Berge,
391 F.3d 852 (7th Cir. 2004). The court considered the same
two concerns that District Court considered here – namely, that
joinder of claims in the context of prisoner litigation presents
unique challenges, and that joinder could undermine § 1915 if



                                16
prisoners were permitted to split fees or avoid strikes. Id. at
854. However, the court stated:

       It does not follow that § 1915 has superseded
       Rule 20. The PLRA does not mention Rule 20 or
       joint litigation. Repeal by implication occurs only
       when the newer rule is logically incompatible
       with the older one. And there is no irreconcilable
       conflict between Rule 20 and the PLRA: Joint
       litigation does not relieve prisoners of any duties
       under the more recent statute.

Id. (internal citations omitted).

        The court concluded that, while the PLRA did not
preempt joinder, § 1915(b)(1) did affect the collection of fees
for IFP prisoner litigants such that each prisoner must pay the
full individual fee. Id. at 855-56. The court also determined
that, reading the PLRA and Rule 20 together, § 1915(g) would
require joint litigants to be held liable for strikes against their
co-plaintiff’s claims. The court articulated no concern that
§ 1915(g) conflicts with Rule 20 joinder. Rather, “[w]hen
claims are related enough to be handled together, they are
related enough for purposes of § 1915(g).” Id. at 855.

       The Seventh Circuit’s reasoning in Boriboune is
compelling. The PLRA did not alter the text of Rule 20, or make
any reference to the Rule. Lacking such an express reference,


                                17
the only way to conclude that the PLRA altered Rule 20 would
be to determine that the later statute repealed the Rule by
implication as to prisoner litigants. This requires more than
mere tension in applying the later law’s provisions to the earlier.
“[R]epeals by implication are not favored and will not be
presumed unless the intention of the legislature to repeal is clear
and manifest.” National Ass’n of Home Builders v. Defenders
of Wildlife, 127 S. Ct. 2518, 2532 (2007) (internal quotation
marks and brackets omitted). “An implied repeal will only be
found where provisions in two statutes are in irreconcilable
conflict, or where the latter act covers the whole subject area of
the earlier one and is clearly intended as a substitute.” Branch
v. Smith, 538 U.S. 254, 273 (2003) (internal citations and
quotation marks omitted).

        Since the PLRA does not even address permissive
joinder, much less cover the whole subject area, we cannot
conclude that the later statute repealed Rule 20 unless the two
provisions are in irreconcilable conflict. In interpreting the later
statute, “[w]e will not infer a statutory repeal unless . . . such a
construction is absolutely necessary in order that the words of
the later statute shall have any meaning at all.” National Ass’n
of Home Builders, 127 S. Ct. at 2532 (internal quotation marks,
brackets, and ellipses omitted).

       The plain language of § 1915(b)(1) can be read in
complete harmony with Rule 20 by requiring each joined
prisoner to pay the full individual fee. As the Seventh Circuit


                                18
reasoned, taking “§ 1915(b)(1) at face value,” the requirement
for each prisoner to pay a full fee is simply one price that a
prisoner must pay for IFP status under the PLRA. Boriboune,
391 F.3d at 856.2

       Such an interpretation can also be read in harmony with
§ 1915(b)(3), which 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 or appeal. 28 U.S.C.
§ 1915(b)(3). Section 1915(b)(3) must be read in the context of
§ 1915(b) as a whole. Section 1915(b)(1) provides that a court
must ultimately collect a full filing fee from a prisoner, and,
where possible, must collect an initial portion of the fee up front.
Section 1915(b)(2) establishes procedures by which a prisoner
shall make monthly payments against the balance of the fee.
Read in sequence, common sense indicates that § 1915(b)(3)


  2
    Although Judge Roth would have a court divide a single fee
between joined plaintiffs, Judge Jordan agrees “that a plain
reading of § 1915(b)(1) requires each prisoner to pay a full filing
fee.” Thus, a majority of the panel agrees on this point. Judge
Jordan and I do not agree with Judge Roth’s suggestion that
Judge Jordan’s view as to this issue does not count because he
believes that, while joinder is available generally, the District
Court was within its discretion to deny joinder in this case. The
filing fee issue is clearly before us, and he and I are in
agreement as to its resolution. We believe that case law
regarding differing views of panel judges as to jurisdiction is not
relevant here.

                                19
merely ensures that an IFP prisoner’s fees, when paid by
installment, will not exceed the standard individual filing fee
paid in full. Nothing in § 1915(b) mentions joinder or indicates
that Congress intended § 1915(b)(3) to serve as a bar to the
collection of multiple individual fees from individual plaintiffs
in a joint litigation.3 Reading the PLRA as requiring each joined
IFP litigant to pay a full individual filing fee by installment, and
no more, harmonizes the PLRA with Rule 20, and internally
harmonizes the various provisions of § 1915(b).

        We are merely called upon in this case to determine how
two laws should operate together. The two laws at issue
accomplish independent and complementary purposes, which
can and should coexist. As the Seventh Circuit noted, “[j]oint
litigation does not relieve prisoners of any duties under the more
recent statute.” Boriboune, 391 F.3d at 854. The application of
repeal by implication would undermine congressional goals.
Moreover, it would expand repeal by implication into an
everyday principle, since Congress routinely enacts legislation
with provisions that do not neatly coexist with existing statutes.

  3
   The final provision of the subsection, § 1915(b)(4), parallels
§ 1915(b)(3) in providing that, “In no event shall a prisoner be
prohibited from bringing a civil action or” filing an appeal for
failure to have sufficient assets to pay an initial fee. 28 U.S.C.
§ 1915(b)(4). Read together, §§ 1915(b)(3) and (4) are intended
to protect an IFP prisoner’s rights. This further suggests that
Congress did not intend § 1915(b)(3) to be a vehicle for denying
a prisoner’s access to permissive joinder.

                                20
Sections 1915(b)(1) and (3) hardly convey a “clear and
manifest” intent by Congress to repeal Rule 20, and constructing
the PLRA so as to nullify Rule 20 is not “absolutely necessary.”

        We think that the Seventh Circuit was correct when it
observed that the “three strikes” provision of § 1915(g) is not
necessarily in conflict with Rule 20. If a plaintiff desires to join
with other prisoners, he could face the prospect of being
responsible for the strikes of others. We disagree with the
District Court in the instant action that the issue would
necessarily be resolved the other way – that is, that a joint
litigant will necessarily avoid a strike under § 1915(g) because
a prisoner would not be charged for the dismissal of his or her
claim as long as the entire case was not dismissed. The question
of precisely how strikes should be assessed in a joint prisoner
litigation was not before the District Court and is not before us.
However, when combined with a full filing fee requirement,
§ 1915(g) may actually dissuade joint litigation since a court
could hold that, reading the PLRA and Rule 20 together, a
plaintiff is accountable for the dismissal of a co-plaintiff’s
claims.

        Thus, we conclude that the PLRA did not repeal Rule 20
joinder as to IFP prisoner litigants. Nothing in the PLRA speaks
with sufficient clarity or creates an irreconcilable conflict, and
the statute cannot be deemed to exclude IFP prisoner litigants
from Rule 20 joinder as a matter of law.



                                21
       2. Rule 20 and Conditions of Incarceration

        In addition to the purported conflicts between Rule 20
and the PLRA, the District Court also relied on general
conditions faced by inmate populations to conclude that joinder
was unavailable. The Court noted several difficulties in
multiple-prisoner litigations that were identified by other district
courts in Wasko v. Allen County Jail, 2006 WL 978956
(N.D. Ind. April 12, 2006) and Swenson v. MacDonald, 2006
WL 240233 (D. Mont. Jan. 30, 2006). The difficulties identified
by those courts were (1) “the need for each plaintiff to sign the
pleadings, and the consequent possibilities that documents may
be changes as they are circulated”; (2) “prisoners may seek to
compel prison authorities to permit them to gather to discuss the
joint litigation”; (3) “jail populations are notably transitory,
making joint litigation difficult”; and (4) the possibility that
coercion may affect the relations between the inmates. (App.
12.) The District Court concluded that these considerations
made “joint litigation exceptionally difficult.” (Id.) The Court
did not address any considerations specific to the Plaintiffs in
this action.4

   4
    A review of the record suggests that, in fact, some of the
impracticalities asserted by the District Court may not apply to
the Plaintiffs in the current matter. For instance, there is no
evidence that the prisoners had any difficulty securing all of the
required signatures on the pleadings and the filings related to
this appeal. Also, the ADTC is a relatively small facility with
                                                   (continued...)

                                22
        Essentially, the District Court relied on arguments that
prisoners should not be considered “persons” permitted to join
under Rule 20. We do not agree. “The Supreme Court and this
Court have repeatedly held that the Federal Rules of Civil
Procedure, like any other statute, should be given their plain
meaning.” Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135,
142 n.7 (3d Cir. 2001). The Court’s “inquiry is complete if we
find the text of the Rule to be clear and unambiguous.” Id.
(internal quotation marks omitted). Rule 20’s use of the term
“persons” is clear and unambiguous. Nothing in the Rule itself
raises any hint that prisoners should not be included within the
broad definition of persons capable of joining their claim
pursuant to the Rule. Thus, the District Court’s reliance on
these extrinsic considerations rather than the plain language of
Rule 20 was error.5



  4
   (...continued)
approximately 600 inmates, suggesting that joint litigation by
inmates of the facility may be manageable.
  5
   Although the District Court made no mention of the specific
conditions facing the instant prisoners, Judge Jordan believes
that generalized difficulties of prisoner litigation provided
sufficient grounds for the District Court to deny joinder. While
a judge may well identify credible reasons why joint litigation
of prisoner suits might not generally be a good idea, such
opinions cannot be used to defeat congressional intent by
disregarding the plain language of Rule 20.

                              23
        The District Court based its decision to deny joinder on
an erroneous interpretation of Rule 20, and we therefore
conclude that the Court abused its discretion in denying joinder
to Appellants.6 Aside from correcting this error of law,
however, our decision does not limit the District Court’s broad
authority with regard to joinder under Rule 20, which is, after
all, discretionary. In exercising its discretion, the District Court
must provide a reasoned analysis that comports with the
requirements of the Rule, and that is based on the specific fact
pattern presented by the plaintiffs and claims before the court.
It is insufficient for a court to rely on general assumptions
regarding the circumstances of incarceration.




    6
     The District Court determined that Rule 20 joinder was
unavailable to Appellants, and dismissed all but Hagan pursuant
to Rule 21. As an alternative argument, Respondents seek to
frame our inquiry as a review of the District Court’s
discretionary power to dismiss under Rule 21, rather than a
review of the Court’s interpretation of Rule 20. However, the
Court dismissed the Plaintiffs only after concluding that they
were precluded from joining under Rule 20. Thus, the Court’s
incorrect interpretation of Rule 20 was dispositive, and we need
not separately address the Court’s authority under Rule 21.

                                24
                    III. Class Certification

        Appellants also argue that the District Court erred in
denying their motion for class certification under Rule 23(b)(3).
In their complaint, Appellants claimed that inmates of the
ADTC were either subject to actual skin infections, or were
subject to the threat of future injury due to deliberate
indifference on the part of prison officials in failing to contain
the contagion. The District Court denied class certification for
failure of the named Plaintiffs to meet certain requirements of
Rule 23(a).

        This Court has the discretion to exercise jurisdiction over
an interlocutory appeal denying class certification. Fed. R.
Civ. P. 23(f); Newton v. Merrill Lynch, Pierce, Fenner & Smith,
Ind., 259 F.3d 154, 163 (3d Cir. 2001). We have identified non-
exclusive principles to guide our discretion, counseling us to
exercise jurisdiction when denial of certification would
effectively terminate a litigation, create excessive pressure to
settle, or reach a novel or unsettled question of law. Id. at 164.
In light of the fact that this matter will be remanded for
resolution of the joinder issue, we find it appropriate to exercise
our jurisdiction over the class certification issue also.

       We review a district court’s denial of class certification
for abuse of discretion. In re LifeUSA Holding Inc., 242 F.3d
136, 143 (3d Cir. 2001). A district court abuses its discretion
when “its decision rests upon a clearly erroneous finding of fact,


                                25
an errant conclusion of law or an improper application of law to
fact.” Danvers Motor Co., Inc., 543 F.3d at 147 (internal
quotation marks omitted).

       Rule 23(a) provides that members of a class may only sue
on behalf of a class if (1) the class is so numerous that joinder is
impractical; (2) there are common questions of law or fact;
(3) the claims of the representative parties are typical of the
class; and (4) “the representative parties will fairly and
adequately protect the interests of the class.” Fed. R. Civ. P.
23(a). Although the District Court’s precise grounds for
denying certification are not entirely clear, it appears that the
Court determined that the Plaintiffs failed to satisfy the
commonality, typicality, and adequacy requirements of 23(a).

       The Court stated that “the claims of the representative
party may not be typical of the claims of the class” because the
purported class would include inmates that suffered life-
threatening injuries, and inmates that suffered no physical
injuries. (App. 13) The Court also reasoned that the treatment
received by different members of the class could vary. “In light
of the disparate factual circumstances of class members,
especially the difference in regard to medical needs and injury,”
the Court determined that a class action was undesirable. (Id.)
Furthermore, the Court stated that a prisoner proceeding pro se
could not adequately represent a class of inmates.




                                26
        The District Court’s reasoning is problematic. In Hassine
v. Jeffes, 846 F.2d 169 (3d Cir. 1988), this Court ruled that a
district court erred in failing to certify a class of prisoners that
alleged that they were all constitutionally injured by the
conditions at their facility. The Court reasoned that, with regard
to typicality and commonality,

       Rule 23 does not require that the representative
       plaintiff have endured precisely the same injuries
       that have been sustained by the class members,
       only that the harm complained of be common to
       the class, and that the named plaintiff demonstrate
       a personal interest or “threat of injury ... [that] is
       ‘real and immediate,’ not ‘conjectural’ or
       ‘hypothetical.’ ”

Id. at 177 (quoting O’Shea v. Littleton, 414 U.S. 488, 494
(1974)).

        On the limited basis of the District Court’s brief opinion,
we fail to see how the Plaintiffs in this case failed to satisfy the
requirements of Hassaine. Appellants alleged that all prisoners
at the facility, including the named plaintiffs, were subject to the
threat of an injury. The complaint squarely alleges that prison
officials violated the Eighth Amendment by being “deliberately
indifferent to the exposure of inmates to a serious,
communicable disease,” and that the amendment “also protects
against future harms to inmates.” (App. 27.) The District Court


                                27
failed to articulate why, at this early stage, this alleged threat of
injury is insufficiently typical or common to allow Appellants’
action to proceed as a class.

        Moreover, we do not question the District Court’s
conclusion that pro se litigants are generally not appropriate as
class representatives. See Oxendine v. Williams, 509 F.2d 1405,
1407 (4th Cir.1975) (“[I]t is plain error to permit [an]
imprisoned litigant who is unassisted by counsel to represent his
fellow inmates in a class action.”) However, the District Court
had expressly deferred consideration of the Plaintiffs’ motion
for appointment of counsel, finding that such a decision would
be premature since the Defendants had not yet been served. We
likewise find it premature for the District Court to conclude that
Plaintiffs’ representation of the class would be inadequate
before the Court decided whether to appoint counsel. For these
reasons, we conclude that the District Court abused its discretion
in denying class certification.

                         IV. Conclusion

       The District Court’s order denying joinder to the
Appellants was based on an erroneous conclusion of law and
will be REVERSED. The District Court also abused its
discretion in concluding that Appellants could not proceed as a
class, and the order denying class certification will be
VACATED. We will REMAND the matter for further
consideration consistent with this Opinion.


                                 28
HAGAN v. ROGERS, No. 07-1412

JORDAN, Circuit Judge, Concurring in part and Dissenting in
part

        The issues in this appeal are, first, whether prisoners
seeking to proceed in forma pauperis under the Prison Litigation
Reform Act (“PLRA” or the “Act”), 28 U.S.C. §§ 1915 et. seq.,
may be joined under Rule 20 of the Federal Rules of Civil
Procedure, and second, if so, whether joinder should be
permitted in this case. My colleagues answer the first question
in the affirmative, and, though I have reservations about their
interpretation of the PLRA, I agree with them on that. They are,
however, unable to agree with each other on the method for
collecting the necessary filing fees associated with any jointly
filed civil action or appeal.7 On this point, I agree with Judge
Rendell that § 1915(b)(1) requires the collection of the full filing


  7
    Because this action was initiated as a single claim, the issue
of the appropriate fee arose for the first time when the parties
jointly sought to pursue this appeal in forma pauperis. While
that motion was initially granted, the Clerk later vacated the
order on the basis that “the issue of how to assess filing fees in
multi-plaintiff cases is an open question in this circuit.” (App.
at 143.) We then directed the parties to address the manner in
which fees are to be assessed for an appeal involving multiple
prisoner-appellants. The effect of any holding on the issue of
fees, however, is not limited to fees on appeal but also applies
to the fees due on initiation of a multi-prisoner civil action.

                                29
fee from each prisoner. Nevertheless, in the end, I part company
with both of my colleauges on the decision to reverse the
District Court’s denial of joinder because I believe the District
Court correctly determined that characteristics of the prison
setting will generally make joinder under Rule 20 impracticable
and that this case fits that general rule. I therefore respectfully
dissent.8




       Although I agree with the Majority that the PLRA does
not repeal Rule 20 by implication, I write separately on this
issue to explain why I view the more logical reading of §




   8
     In addition to agreeing with the majority that there is no
irreconcilable conflict between the PLRA and Rule 20, I also
concur with the Majority’s reasoning regarding our jurisdiction
to consider this appeal. In addition, I agree with the Majority’s
conclusion that, on this record, it was premature to rule that a
class could not be certified in this case. (Maj. Op. at 28.) I
therefore agree that the District Court should not have denied
class certification at this stage, and I concur in the judgment to
that limited extent, though that does not imply that class
certification must be granted, nor does it say anything about
who, if anyone, could properly serve as class representative. It
means only that the reasons given for denial are insufficient, as
explained by the Majority.

                                30
1915(b)(3) as being inconsistent with joinder.9 The PLRA arose
out of a concern that restrictions in the in forma pauperis statute
failed to adequately deter prisoners from filing frivolous
lawsuits. Para-Professional Law Clinic at SCI-Graterford v.
Beard, 334 F.3d 301, 303 (3d Cir. 2003) (“Congress enacted the
PLRA in an apparent effort ... to discourage prisoners from
filing frivolous lawsuits which strain the judiciary’s scarce
resources.”). Under § 1915, when “a prisoner brings a civil
action or files an appeal in forma pauperis, the prisoner shall be
required to pay the full amount of a filing fee.” 28 U.S.C. §
1915(b)(1). The statute also states that the filing fee collected
in a prisoner action may not “exceed the amount of fees
permitted by statute for the commencement of a civil action or
an appeal of a civil action or criminal judgment.” Id. §
1915(b)(3).




  9
    My colleagues also express the view that there is no conflict
between Rule 20 and §1915(g), the so-called “three strikes”
provision. I question that conclusion because it seems more
likely that, under the language of the PLRA, no litigant would
be assessed a strike unless an action was dismissed in its
entirety, thereby allowing a stack of frivolous claims to be
balanced on a single meritorious claim. However, the issue of
strike allocation was not before the District Court and is not
before us. We therefore need not address it at this juncture.

                                31
        Judge Rendell, adopting the position of the Seventh
Circuit in Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004),
concludes that § 1915(b)(1) and Rule 20 may be read in
harmony by requiring each joined prisoner to pay a full filing
fee. (Maj. Op. at 17-21.) I agree that a plain reading of §
1915(b)(1) requires each prisoner to pay a full filing fee. I find
it much harder to agree that multiple prisoners can be joined
under Rule 20 in a single suit and each be compelled to pay the
full filing fee. That approach runs afoul of the emphatic
mandate in § 1915(b)(3) that “in no event” may the fee collected
in a prisoner case exceed that collected in any other civil action
or appeal. As Judge Rendell sees it, common sense suggests
that the ultimate concern of § 1915(b)(3) is that each prisoner
not pay more than the full filing fee for any action, rather than
that the total fee collected in a given case not exceed that
collected in any other case. While I agree that § 1915(b)(3) can
be read as she proposes, I remain convinced that the logic and
language of the PLRA are in large measure inconsistent with
joinder under Rule 20.




       The best guide to Congressional intent is the Act itself.
See Disabled in Action of Pennsylvania v. Southeastern
Pennsylvania Transp. Auth., 539 F.3d 199, 210 (3d Cir. 2008)
(“We assume that Congress expresses its intent through the
ordinary meaning of its language and therefore begin with an
examination of the plain language of the statute.”) (internal


                               32
quotation marks and citation omitted). Congress’s use of the
passive construction, “the fee collected,” indicates that §
1915(b)(3) is not to be viewed solely on a prisoner-by-prisoner
basis but that the fee for the case itself, in total, ought not exceed
the standard fee in any similar action. “Our task is to give effect
to the will of Congress, and where its will has been expressed in
reasonably plain terms, that language must ordinarily be
regarded as conclusive.” Negonsott v. Samuels, 507 U.S. 99,
104 (1993); accord Abdul-Akbar v. McKelvie, 239 F.3d 307, 313
(3d Cir. 2001) (en banc). The language of the PLRA is
reasonably plain in this regard. It says, without qualification,
that a full filing fee must be collected from a litigating prisoner
and, again, that “in no event shall the fee collected exceed the
amount of fees permitted by statute for the commencement of a
civil action or an appeal of a civil action.” § 1915(b)(1), (3)
(emphasis added). Having multiple prisoners in a single suit,
each paying a full fee creates an “event” that we are instructed
should in no event be created. For example, in this case,
collecting a full filing fee on appeal from each prisoner will
result in a total fee of approximately $6300, far in excess of the
$450 fee collected in the filing of any other civil appeal. As
Judge Roth points out, that result “is incongruous with the
relevant statutory scheme ... .”10 (Concurring Op., ¶ 1.)


  10
    Viewing §§ 1915(b)(3) and (4) as directed to an individual
prisoner’s ability to initiate an action, as suggested in Judge
Rendell’s opinion, supports the conclusion that the PLRA was
                                                  (continued...)

                                 33
        I am, however, unable to agree with Judge Roth’s
resolution of the fees conundrum because it appears
incompatible with the plain language of the PLRA. The Act is
phrased in the singular: “if a prisoner brings a civil action or
files a civil appeal, the prisoner shall be required to pay the full
amount of a filing fee.” §1915(b)(1) (emphasis added). While
Judge Roth reads § 1915(b)(1) with stress on the “a” of “a filing
fee,” see Talley-Bey v. Knebl, 168 F.3d 884, 885 (6th Cir. 1999),
such a reading dismisses the rest of the same sentence, which
obligates the filing party, not a collective of filing parties, to pay
the full amount of any filing fee, not a portion of it. Indeed,
when Judge Roth says her solution would satisfy § 1915(b)(1)
“because each prisoner would pay a full filing fee” (Concur. Op.
at 3; original emphasis), a reader must stumble over the word
“full.” There is nothing “full” about paying a partial fee.




       Congress’s choice of language in §§ 1915(b)(1) and
(b)(3) makes sense when we recall that the individual
responsibility of each prisoner to pay his or her own way in


  10
    (...continued)
meant to protect prisoners from punitive filing fees, but it
implies nothing of an intention to foster joint actions by
prisoners. Hence, in the face of Judge Roth’s accurate
observation about the incongruity of the result here, Judge
Rendell’s appeal to common sense is not entirely persuasive.

                                 34
litigation is central to the purpose of the PLRA. See Abdul-
Akbar, 239 F.3d at 312 (“In enacting the PLRA, Congress
concluded that the large number of meritless prisoner claims
was caused by the fact that prisoners easily obtained [in forma
pauperis] status and hence were not subject to the same
economic disincentives to filing meritless cases that face other
civil litigants.”). The “modest monetary outlay” of the full
filing fee is intended to “force prisoners to think twice about the
case and not just file reflexively. Prisoners will have to make
the same decision that law-abiding Americans must make: Is
the lawsuit worth the price? ” See 141 Cong. Rec. S 7, 498-01,
526 (May 25, 1995) (Statement of Sen. Kyl). Reading the
PLRA in a way that permits individual prisoner-plaintiffs to
circumvent the required monetary outlay is, it would seem, a
betrayal of the statute’s purpose, and can only undermine
Congress’s effort to stem the tide of frivolous litigation.11


   11
      It is noteworthy that the statutory construction problems
posed by applying Rule 20 in the face of the strictures of §§
1915(b) and (g) do not arise in the context of consolidation of
suits under Federal Rule of Civil Procedure 42(a). The
difference between joinder under Rule 20 and consolidation
under Rule 42(a) is not a distinction without a difference. Under
the latter rule, before there is a consolidation there are, by
definition, separate actions, for each of which a filing fee is paid
and each of which must stand on its own merit. See Johnson v.
Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933); In re
Community Bank of Northern Virginia, 418 F.3d 277, 298 n.12
                                                     (continued...)

                                35
        Despite my views regarding the better reading of §
1915(b), I agree with my colleagues that, for us to decide that
Rule 20 does not apply in prisoner cases, we must first conclude
that the PLRA repealed the Rule by implication, at least to the
limited extent that the two cannot both be properly applied in the
context of prisoner litigation. As the Majority points out, repeal
by implication requires that the “intention of the legislature to
repeal [is] clear and manifest.” Hawaii v. Office of Hawaiian
Affairs, 129 S.Ct. 1436, 1445 (U.S. Mar. 31, 2009) (citation
omitted). Where possible, statutes that appear to conflict should
be read to give effect to both. See Ruckelshaus v. Monsanto
Co., 467 U.S. 986, 1018 (1984) (“Where two statutes are
capable of co-existence, it is the duty of the courts, absent a
clearly expressed congressional intention to the contrary, to
regard each as effective.”) (internal quotations and citations
omitted). Although I cannot wholly embrace Judge Rendell’s
reading of the PLRA, it is at least a plausible reading of the
statute. Section 1915(b)(3) may legitimately be read so that the


  11
    (...continued)
(3d Cir. 2005) (affirming Johnson as the “authoritative”
statement on the law of consolidation”) (citation omitted). Rule
42(a) stands as an independent and solid foundation for bringing
efficiencies to related prisoner lawsuits, as district courts may,
on a case-by-case basis, deem fit. See Young v. City of Augusta,
59 F.3d 1160, 1168-69 (11th Cir. 1995) (when the “core issue of
liability” was “the same in both cases[,]”consolidation of actions
involving prison deliberate indifference claims would be
warranted).

                               36
“in no event” language is limited to a single-plaintiff suit,
thereby ensuring nothing more than that, when a filing fee is
collected from an in forma pauperis plaintiff in installments, the
sum of the fee collected from that plaintiff is no more than that
collected in any other civil action. Because that reading would
give full effect to both the PLRA and Rule 20, I am unable to
conclude that there is an irreconcilable conflict that would
warrant a repeal by implication. I therefore join my colleagues
in holding that joinder under Rule 20 is not inconsistent with the
PLRA, at least not as a matter of statutory interpretation.




        Of course, there are, as the District Court found here, a
number of reasons why allowing prison inmates to jointly
litigate may generally be unwise. Beyond both the parsing of
language in the PLRA and abstract thoughts about the Federal
Rules of Civil Procedure, there remains a world of practical
difficulty in dealing with legal claims pressed by prisoners.
Thus, even though joinder under Rule 20 is not prohibited by the
PLRA, I am unable to agree with the Majority’s conclusion that
the District Court was wrong to deny the motion for joinder in
this case.




       The District Court’s well-reasoned opinion identifies
several issues that deserve greater respect than we have given


                               37
them. If joinder of prisoners is freely permitted, there will be
inevitable demands to allow meetings and other communications
about litigation strategy. Trying to coordinate prisoner
schedules and monitor such interactions, while dealing with the
virtually certain insistence that prisoner discussions of
privileged matters must not be monitored, will place obvious
and onerous demands on prison administrators, not to mention
making simple safety and disciplinary measures more difficult
to enforce, since every added layer of legalism adds friction to
the administrative process. Society accepts a certain degree of
such friction, because efficiency is not the sole or the primary
goal of our penal system. But we should be extremely cautious
about adding to the inefficiency, particularly when the rules we
impose are susceptible to abuse by savvy jail-house lawyers.




        The realities of prison operation, with which district court
judges become familiar through the many pro se prisoner cases
filed each year, are discounted by the Majority’s suggestion that
“joint litigation by inmates of the [Adult Diagnostic and
Treatment Center] may be manageable” because the ADTC is “a
relatively small facility with approximately 600 inmates ... .”
(Maj. Op. 22-23 n.4.) Even at a comparatively small facility,
permitting inmates to congregate and having to monitor
materials passed between them, all while maintaining the safety
of other inmates and prison personnel, would be no small feat.



                                38
And, of course, that says nothing of the impact our decision will
have on not-so-small institutions.




        The transitory nature of the prisoner population is another
factor identified by the District Court as problematic for multi-
prisoner case administration. Repeated questions about standing
and mootness will arise from an ever-changing list of plaintiffs,
and ordinary logistics will be troublesome. Even in this case,
with a moderate number of plaintiffs, the shifting prison
population has proven a challenge. By the time the case was
argued to us, only five of the fourteen plaintiffs were still in the
Adult Diagnostic and Treatment Center, while eight others were
no longer in the New Jersey correctional system at all. While
keeping tabs on those outside the prison system may be easier
in this case because formerly incarcerated plaintiffs are required
to register as sex offenders, there is no guarantee that released
plaintiffs will be locatable under other circumstances. As our
own docket reflects, hunting for plaintiffs imposes
administrative burdens. See Docket 12/24/08 and 1/09/2009
letters from the Clerk of the Third Circuit to the ADTC (seeking
forwarding information for released and deceased inmates for
purposes of notification of oral argument).




                                39
       Perhaps of greatest concern is the addition of a new
subject for intimidation and coercion within the prison setting.
Even well-run prisons can present a dangerous environment, in
which freedom of choice is constrained not just by official
means. Inmates may be compelled through threats, physical
force, or more subtle forms of duress to join lawsuits in which
they would otherwise have no interest. Climbing onboard a
complaint about prison conditions may seem like an excellent
idea when the alternative is presented by a fellow inmate with
a record for assault.




        The concerns behind the District Court’s decision are not
a fanciful parade of horribles. They reflect a seasoned judge’s
view of predictable outcomes and an understanding that treating
incarcerated criminals as if they had nothing to gain by gaming
the litigation system is systemically bad both for the courts and
the prisons. Thus, I am not inclined, as the Majority is, to say
that a general statement of opposition to Rule 20 joinder in
prisoner cases constitutes an abuse of discretion. Moreover,
while the District Court did not fully explain its application of
that general rule to the facts of this case, its denial of joinder
was sufficiently tied to the present particulars that we should
recognize the decision as fairly disposing of the case on its facts




                                40
and not simply as announcing “general assumptions regarding
the circumstances of incarceration.”12 (Maj. Op. at 24.)




        The District Court produced a thoughtful and, to me at
least, thoroughly persuasive opinion in this regard. It’s ruling
was not an abuse of discretion. Consequently, except to the
extent noted, I dissent.




   12
      The District Court did say, “Plaintiffs here have asserted
claims that require individualized screening ... . The adequacy
of the claim alleged by each Plaintiff is dependent upon his
individual medical need and the behavior of prison officials with
respect to that individual Plaintiff.” (App. at 12.) The Court
thus appears to have been concerned not merely with prisoner
litigation in the abstract but rather with problems it foresaw in
the circumstances presented by this case.

                               41
HAGAN v. ROGERS, No. 07-1412

ROTH, Circuit Judge, Concurring in Part and Dissenting In
Part:

       Judge Rendell correctly holds that we have jurisdiction
over this case and that prisoners may join cases under Federal
Rule of Civil Procedure 20. I disagree, however, with her
holding that each prisoner in a joint-prisoner action must
individually pay the entire appellate-docketing fee. Because that
holding is incongruous with the relevant statutory scheme, I
respectfully dissent from that portion of her opinion. I would
require that each prisoner pay an apportioned amount of a single
appellate-docketing fee.




        Judge Rendell’s holding is incorrect because it violates
28 U.S.C. § 1915(b)(3) and misconstrues 28 U.S.C. §
1915(b)(1). The holding violates § 1915(b)(3), which states that
“[i]n no event shall” a court collect a filing fee that “exceed[s]
the amount of fees permitted by statute for . . . an appeal of a
civil action.” 28 U.S.C. § 1915(b)(3). Section § 1915(b)(3) thus
adopts a sister statute’s cap on appellate-docketing fees; 28
U.S.C. § 1913 is that statute. In § 1913, Congress provides that
“[t]he fees and costs to be charged and collected in each court of
appeals shall be prescribed . . . by the Judicial Conference of the
United States.” Id. § 1913. The Judicial Conference, in turn,


                                42
prescribes a $450 fee “for docketing a case on appeal.” Judicial
Conference Schedule of Fees, Court of Appeals Miscellaneous
Fee Schedule ¶ 1. Importantly, the Fee Schedule notes that
“parties filing a joint notice of appeal in the district court are
required to pay only one fee.” Id. (emphasis added). Thus, in
contrast to the Judge Rendell’s holding, “each joined prisoner”
cannot “pay the full individual fee.” (Rendell, J., Op. II.B.1.)




       In the case before us, the fourteen prisoners cannot each
pay $450 (yielding a $6300 intake) because “parties filing a
joint notice of appeal . . . are required to pay only one [$450]
fee.” See Judicial Conference Schedule of Fees, Court of
Appeals Miscellaneous Fee Schedule ¶ 1




       Judge Rendell’s holding violates § 1915(b)(3) because
she misconstrues § 1915(b)(1). She believes that the “plain
language of § 1915(b)(1)” requires each prisoner to “pay the full
individual fee.” (See Rendell, J., Op. II.B.1.) But § 1915(b)(1)
does not impel that result. It, instead, requires each party—or
each prisoner—“to pay the full amount of a filing fee.” 28
U.S.C. § 1915(b)(1) (emphasis added). This subtle difference,
Congress’s use of “a” instead of “the,” illustrates that the $450
fee requirement varies depending on whether a single party—or
a single prisoner—or multiple parties—or multiple


                               43
prisoners—bring suit. When one prisoner brings suit, he
satisfies § 1915(b)(1) by paying $450; when multiple prisoners
bring suit under Federal Rule of Civil Procedure 20, they satisfy
§ 1915(b)(1) by paying the apportioned amount of $450. In
either situation, the full amount of a filing fee is paid. Each
prisoner here thus should pay a one-fourteenth share of $450.




        The holding in the case that Judge Rendell relies on also
violated § 1915(b)(3) and misconstrued § 1915(b)(1). The
Seventh Circuit Court of Appeals has held that prisoners can
proceed jointly if they satisfy Rule 20. See Boriboune v. Berge,
391 F.3d 852, 855 (7th Cir. 2004). But when it turned to the
fee-assessment issue, the Seventh Circuit concluded that §
1913(b)(1) makes it “each prisoner’s responsibility to pay the
full fee.” See id. at 856 (emphasis added). The Seventh Circuit,
however, did not analyze §1915(b)(3). See id. at 855–56.




       The Sixth Circuit Court of Appeals, by contrast, supports

assessing an apportioned amount of filing fees in joint-prisoner
actions. The Sixth Circuit addressed the issue of how to assess
fees and costs in a two-prisoner suit. See Talley-Bey v. Knebl,


                               44
168 F.3d 884, 885 (6th Cir. 1999). It affirmed a district court’s
division of costs and fees between two prisoners. Id. at 887. It
noted that “any fees and costs that a district court or that we may
impose must be equally divided among all the participating
prisoners.” Id. (emphasis added).




        I would assess an apportioned fee among the fourteen
prisoners to satisfy the $450 appellate-docketing fee. This
would satisfy both § 1915(b)(1), because each prisoner would
pay a full filing fee, and § 1915(b)(3), because the prisoners
together would pay only one $450 fee. I therefore dissent from
that part of Judge Rendell’s opinion that holds that each prisoner
must pay the full $450 filing fee.13


  13
    Moreover, I submit that there is no judgment by the Court
on this issue because only one eligible judge has voted to require
each prisoner-plaintiff in a joint action to pay the full filing fee.
As the motions panel noted, resolution of the fee issue requires
the resolution of permitting joinder in this case. (See J.A. at
152.) Because Judge Jordan would not permit joinder in this
case, he should not be able to vote on the fee required in a Rule
20 joint action by prisoners. See In re Market Square Inn, Inc.,
978 F.2d 116, 121 (3d Cir. 1992) (stating that only the two
members of the panel who held that appellate jurisdiction
existed voted on the merits of the district court’s decision).
Because the two eligible judges disagree, the Court has no
                                                     (continued...)

                                 45
  13
    (...continued)
judgment or holding on the issue of how to assess fees. Any
statements by Judge Jordan in his separate opinion concerning
fees are merely dicta.

                             46
