Gauthier et al v. Cape Girardeau County Jail et al

Filing 5

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Michael Ray Fitzpatrick, Plaintiff Robert Dale Gauthier motion is DENIED WITHOUT PREJUDICE. IT IS HEREBY ORDERED that the Cler k of Court return to plaintiffs Robert Dale Gauthier and Michael Ray Fitzpatrick their complaint for the purpose of obtaining their original signature. IT IS FURTHER ORDERED that the Clerk of Court shall forward to plaintiffs Robert Dale Gauthier and Michael Ray Fitzpatrick, with a copy of this Order, the court forms entitled "Motion to Proceed In Forma Pauperis and Affidavit in Support -- Prisoner Cases." IT IS FURTHER ORDERED that, within thirty (30) days from the date of this Order , plaintiffs Robert Dale Gauthier and Michael Ray Fitzpatrick shall submit to the Court a properlysigned complaint. Their failure to do so shall result in dismissal of this action, without prejudice. IT IS FURTHER ORDERED that, within thirty (30) day s from the date of this order, plaintiffs Robert Dale Gauthier and Michael Ray Fitzpatrick shall each complete and submit a motion to proceed in forma pauperis and affidavit in support. Additionally, plaintiff Robert Dale Gauthier shall submit a pris oner trust fund account statement along with his motion for leave to proceed in forma pauperis. IT IS FURTHER ORDERED that, if either plaintiff Robert Dale Gauthier or Michael Ray Fitzpatrick fails to return a completed form "Motion to Proceed I n Forma Pauperis and Affidavit inSupport -- Prisoner Cases" within thirty (30) days, the Court will dismiss the complaint as to the plaintiff who fails to comply. If none of the plaintiffs comply with this Order, the Court will dismiss this acti on pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that, upon plaintiffs filing the requisite signed complaint and separate motions to proceed in forma pauperis, affidavits in support and prisoner account stateme nts, the Clerk shall resubmit this matter to the Court for review pursuant to 28 U.S.C. § 1915. IT IS FURTHER ORDERED that plaintiffs' joint motion to proceed in forma pauperis [Doc. # 2] is DENIED WITHOUT PREJUDICE.(Response to Court due by 4/1/2013.) Signed by Magistrate Judge Lewis M. Blanton on 2/28/13. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
ROBERT DALE GAUTHIER and
MICHAEL RAY FITZPATRICK,
Plaintiffs,
v.
CAPE GIRARDEAU COUNTY JAIL, et al.,
Defendants.

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No. 1:13-CV-0033-LMB

MEMORANDUM AND ORDER
This matter is before the Court upon plaintiffs’ submission of a complaint against defendants
Cape Girardeau County Jail, Captain Unknown Mulcahy, Lieutenant Unknown Stevens, Sergeant
Unknown Koehler and Officer Unknown Snider [Doc. #1].
Upon review of the file, the Court notes that the caption of the complaint bears the name of
two plaintiffs, Robert Dale Gauthier and Michael Ray Fitzpatrick; however, neither plaintiff has
signed the complaint. Rule 11(a) of the Federal Rules of Civil Procedure requires that each pleading,
written motion, and other paper be signed by an attorney of record or, if the parties are not
represented by an attorney, by the parties themselves. See Fed. R. Civ. P. 11 (an unsigned complaint
“shall be stricken unless it is signed promptly after the omission is called to the attention of the
pleader”).
Moreover, the determination, under 28 U.S.C. § 1915(a), of whether a plaintiff qualifies for
in forma pauperis status must be based upon the financial status of each of the plaintiffs, independent
of the other’s assets. Lee v. McDonald’s, 231 F.3d 456, 459 (8th Cir. 2000). Because plaintiffs have
submitted a joint request for leave to proceed in forma pauperis and a joint financial affidavit, the

Court will deny their request to proceed in forma pauperis without prejudice.1 Each plaintiff must
submit a separate motion for leave to proceed in forma pauperis and affidavit in support. Because
plaintiffs are proceeding pro se and seek to proceed in forma pauperis, the Court will give them the
opportunity to submit separate motions to proceed in forma pauperis and affidavits in support. See
28 U.S.C. § 1915(a)(1)and (2), Local Rule 2.05(A). Additionally, a review of the case file indicates
that only Michael Ray Fitzpatrick submitted a prisoner trust fund account statement. The Court will
order Robert Dale Gauthier to submit a prisoner trust fund account statement along with his motion
for leave to proceed in forma pauperis.
Therefore,
IT IS HEREBY ORDERED that the Clerk of Court return to plaintiffs Robert Dale
Gauthier and Michael Ray Fitzpatrick their complaint for the purpose of obtaining their original
signature.
IT IS FURTHER ORDERED that the Clerk of Court shall forward to plaintiffs Robert Dale
Gauthier and Michael Ray Fitzpatrick, with a copy of this Order, the court forms entitled “Motion
to Proceed In Forma Pauperis and Affidavit in Support -- Prisoner Cases.”
IT IS FURTHER ORDERED that, within thirty (30) days from the date of this Order,
plaintiffs Robert Dale Gauthier and Michael Ray Fitzpatrick shall submit to the Court a properly
signed complaint. Their failure to do so shall result in dismissal of this action, without prejudice.
IT IS FURTHER ORDERED that, within thirty (30) days from the date of this order,
plaintiffs Robert Dale Gauthier and Michael Ray Fitzpatrick shall each complete and submit a motion
to proceed in forma pauperis and affidavit in support. Additionally, plaintiff Robert Dale Gauthier

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The Court notes that neither Robert Dale Gauthier nor Michael Ray Fitzpatrick signed the
joint motion for leave to proceed in forma pauperis [Doc. #2].
2

shall submit a prisoner trust fund account statement along with his motion for leave to proceed in
forma pauperis.
IT IS FURTHER ORDERED that, if either plaintiff Robert Dale Gauthier or Michael Ray
Fitzpatrick fails to return a completed form “Motion to Proceed In Forma Pauperis and Affidavit in
Support -- Prisoner Cases” within thirty (30) days, the Court will dismiss the complaint as to the
plaintiff who fails to comply. If none of the plaintiffs comply with this Order, the Court will dismiss
this action pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that, upon plaintiffs filing the requisite signed complaint and
separate motions to proceed in forma pauperis, affidavits in support and prisoner account statements,
the Clerk shall resubmit this matter to the Court for review pursuant to 28 U.S.C. § 1915.
IT IS FURTHER ORDERED that plaintiffs’ joint motion to proceed in forma pauperis
[Doc. # 2] is DENIED WITHOUT PREJUDICE.
Dated this 28th

day of February, 2013.

LEWIS M. BLANTON
UNITED STATES MAGISTRATE JUDGE

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