Austin v. S.A. Godinez et al

Filing 20

IT IS HEREBY ORDERED that the claims of Plaintiff ANDREW C. HRUBY are SEVERED into a separate action. IT IS FURTHER ORDERED that Plaintiff HRUBY is TERMINATED from this action with prejudice. The only claims remaining in the present action are the claims of Plaintiff Austin against all Defendants. IT IS THEREFORE ORDERED that if Plaintiff AUSTIN wishes to further pursue his claims, he shall file his First Amended Complaint in this action no later than March 22, 2013. Failure to file an amen ded complaint shall result in the dismissal of this action with prejudice. The Clerk is DIRECTED to send a copy of this Order to Plaintiff Allan K. Austin, and to Plaintiff Andrew C. Hruby. (Action due by 3/22/2013). Signed by Judge Michael J. Reagan on 3/7/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ALLAN K. AUSTIN, # N-97670,
and ANDREW C. HRUBY, #S-07587,
individually and on behalf of all others
similarly situated,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiffs,
vs.
S.A. GODINEZ, et al.,
Defendants.

Case No. 13-cv-84-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
This matter is before the Court for case management, and on two motions filed by
Plaintiff Hruby: a March 4, 2013, motion for status (Doc. 16), and a motion for severance and to
dismiss action (Doc. 18) filed on March 6, 2013. Previously, Plaintiff Hruby had been ordered to
notify this Court by March 4, 2013, whether he wished to continue as a Plaintiff in this joint
action (Doc. 12, entered February 11, 2013).
It is clear from Plaintiff Hruby’s motion for status (Doc. 16) that at the time he
submitted the motion, he had not received this Court’s Order at Doc. 12. This Order was mailed
to Plaintiff Hruby for the second time on February 27, 2013, after the first envelope was returned
as undeliverable (Doc. 15). When he submitted the motion for severance and to dismiss action
(Doc. 18), he had been notified of the Order at Doc. 12 by Plaintiff Austin, but still had not
received his copy (Doc. 18, p. 2). Due to these circumstances, the Court excuses the tardy filing
of Plaintiff Hruby’s response.
The motion for status (Doc. 16) is GRANTED in that the status is reflected
Page 1 of 5

herein and in the Court’s February 11 Order (Doc. 12), which by now Plaintiff should have
received.
Plaintiff Hruby’s motion for severance and to dismiss action (Doc. 18) is
GRANTED IN PART AND DENIED IN PART. In the motion, Plaintiff Hruby states that he
has been moved to another housing unit away from Plaintiff Austin, and he wishes to be severed
from this action as a Plaintiff. He further requests that the instant action be “dismissed without
prejudice to him or Plaintiff Austin” and to “hold harmless” both Plaintiffs (Doc. 18, p. 2).
Notably, the motion is signed only by Plaintiff Hruby, and not by Plaintiff Austin. As was
explained in the Court’s February 11 Order (Doc. 12, p. 5-6), a non-attorney cannot sign a
document or file a motion on behalf of another litigant. See FED. R. CIV. P. 11. Therefore, in the
absence of a signature from his co-Plaintiff Austin, Plaintiff Hruby can request relief from this
Court only for himself. Accordingly, Plaintiff Hruby’s claims shall be severed into a separate
action as requested. However, the instant action, in which only Plaintiff Austin’s claims shall
remain, can only be dismissed at the request of Plaintiff Austin himself. Therefore, the request
for dismissal of this action is DENIED.
IT IS HEREBY ORDERED that the claims of Plaintiff ANDREW C. HRUBY
are SEVERED into a separate action, to be captioned Andrew C. Hruby, Plaintiff, individually
and on behalf of all others similarly situated, vs. S.A. Godinez, et al., Defendants. Plaintiff
Hruby shall be assessed a $350.00 filing fee in that case, and his motion to proceed in forma
pauperis (Doc. 2) shall be considered in the new action. The new case SHALL BE ASSIGNED
to the undersigned District Judge for further proceedings. In the new case, the Clerk is
DIRECTED to file the following documents:
(1)
(2)

This Memorandum and Order
The Original Complaint (Doc. 1)
Page 2 of 5

(3)
(4)
(5)
(6)
(7)
(8)

The joint motion to proceed in forma pauperis (Doc. 2)
The joint motion to appoint counsel (Doc. 3)
The joint motion for class action and certification (Doc. 4)
The joint motion for TRO/Preliminary Injunction (Doc. 8)
Plaintiff Hruby’s Prisoner Trust Fund Account Statements (Docs. 9, 17)
The Memorandum and Order of February 11, 2013 (Doc. 12)

IT IS FURTHER ORDERED that Plaintiff HRUBY is TERMINATED from
this action with prejudice. The only claims remaining in the present action are the claims of
Plaintiff Austin against all Defendants.
Because the operative complaint in this action (Doc. 1) was dismissed pursuant to
Federal Rule of Civil Procedure 8 (see Doc. 12), each Plaintiff must file an amended complaint
in his respective case in order to proceed with his claims. The original deadline of March 4,
2013, for submission of the amended complaint(s) has now passed. In light of the delay in
transmission of the February 11, 2013, Order (Doc. 12) which informed Plaintiffs of this
deadline, additional time shall be granted.
IT IS THEREFORE ORDERED that if Plaintiff AUSTIN wishes to further
pursue his claims, he shall file his First Amended Complaint in this action no later than March
22, 2013. Plaintiff Austin is reminded that an amended complaint supersedes and replaces the
original complaint, rendering the original complaint void. See Flannery v. Recording Indus.
Ass’n of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). The Court will not accept piecemeal
amendments to the original complaint. Thus, the First Amended Complaint must stand on its
own, without reference to any other pleading. Should the First Amended Complaint not conform
to these requirements or to Rule 8 of the Federal Rules of Civil Procedure, it shall be stricken.
Plaintiff Austin must also re-file any exhibits he wishes the Court to consider along with his First
Amended Complaint. Failure to file an amended complaint shall result in the dismissal of this
action with prejudice. Such dismissal shall count as one of the three allotted “strikes” within the
Page 3 of 5

meaning of 28 U.S.C. § 1915(g). Alternatively, if Plaintiff Austin does not wish to pursue this
action, he shall file his notice of voluntary dismissal within the deadline above. A voluntary
dismissal shall not be counted as a “strike,” however, Plaintiff Austin has the obligation to pay
the filing fee for this case regardless of the disposition. No service shall be ordered on any
Defendant until after the Court completes its § 1915A review of the First Amended Complaint.
IT IS FURTHER ORDERED that in order to proceed with his claims, Plaintiff
HRUBY shall file his First Amended Complaint in the newly severed case no later than March
22, 2013. Plaintiff Hruby is reminded that an amended complaint supersedes and replaces the
original complaint, rendering the original complaint void. See Flannery v. Recording Indus.
Ass’n of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). The Court will not accept piecemeal
amendments to the original complaint. Thus, the First Amended Complaint must stand on its
own, without reference to any other pleading. Should the First Amended Complaint not conform
to these requirements or to Rule 8 of the Federal Rules of Civil Procedure, it shall be stricken.
Plaintiff Hruby must also re-file any exhibits he wishes the Court to consider along with his First
Amended Complaint. Failure to file an amended complaint shall result in the dismissal of the
new action with prejudice. Such dismissal shall count as one of the three allotted “strikes”
within the meaning of 28 U.S.C. § 1915(g). Alternatively, if Plaintiff Hruby does not wish to
pursue the severed action, he shall file his notice of voluntary dismissal within the deadline
above. A voluntary dismissal shall not be counted as a “strike,” however, Plaintiff Hruby has the
obligation to pay the filing fee for the severed case regardless of the disposition. No service shall
be ordered on any Defendant until after the Court completes its § 1915A review of the First
Amended Complaint.
The Clerk is DIRECTED to send a copy of this Order to Plaintiff Allan K.

Page 4 of 5

Austin, and to Plaintiff Andrew C. Hruby.
IT IS SO ORDERED.
DATED: March 7, 2013
s/ MICHAEL J. REAGAN
United States District Judge

Page 5 of 5