Tropeano et al v. Rutland Pharmacy et al

Filing 4

ORDER: granting 1 Motion for Leave to Proceed in forma pauperis; granting 3 Motion to Withdraw Complaint. This case is Dismissed under the provisions of Fed.R.Civ.P. 41(a)(1)(A) and (B). It is further certified that any appeal taken in forma pauperis from this Order would not be taken in good faith because such an appeal would be frivolous. Signed by District Judge J. Garvan Murtha on 2/1/2013. (wjf)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Joseph Tropeano,
Susan Tropeano,
Plaintiffs,
v.
Rutland Pharmacy, Rutland
Pharmacy Pharmacists Larry
and Steve, CVS Pharmacy,
Gregory Danyow, Rite-Aid
Pharmacy, Rite-Aid
Pharmacist Jack, Walmart
Pharmacy, Walmary Pharmacy
Pharmaceutical Staff,
Wilcox Pharmacy, Wilcox
Pharmacy Pharmaceutical
Staff, et al.,
Defendants.

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File No. 1:13-cv-17-jgm

OPINION AND ORDER
(Docs. 1 and 3)
Plaintiffs Joseph and Susan Tropeano, proceeding pro se, are
seeking injunctive relief in the form of a criminal investigation
of over 300 defendants who are allegedly engaged in a broad
conspiracy.

Before the Court is the Tropeanos’ motion to proceed

in forma pauperis.

Because they have made the showing of poverty

required under 28 U.S.C. § 1915, their motion (Doc. 1) is
GRANTED.
Also before the Court is the Tropeanos’ motion to withdraw
what has been labeled on the docket as their Proposed Complaint.
For the reasons set forth below, the motion to withdraw (Doc. 3)
is GRANTED and this case is DISMISSED.

Factual Background
Plaintiffs claim they are the victims of a “lethal cult”
that has infiltrated the legal system, law enforcement, and the
medical industry.

Their current concern is that the cult is

allegedly denying Susan Tropeano, a Type I diabetic, access to
effective insulin.

Plaintiffs allege that Susan Tropeano

developed diabetes “as a result of the trauma, terror and shock
of barely surviving under a NAZI-TERRORIST-POLICE STATE REGIME,”
and that the cult has been obtaining her insurance information
and trafficking counterfeit insulin to the pharmacies at which
she receives medications.

(Doc. 1-3 at 14.)

With respect to the scope of the alleged cult’s activities,
the Tropeanos submit that
Phyllis Lienwand with her lethal cult are [sic] very
systematic by pre-meditating and contacting every
conceivable government entity which are [sic]
responsible to eradicate all willful, reckless, wanton
acts of MALICE concerning medical and pharmaceutical
corruption. When these governmental entities are
contacted, these entities abuse, mock and bully the
Tropeanos to the extreme.
It is a known fact that BRIBES, KICKBACKS and PAYOFFS
are committed to these governmental entities and in
return Susan Tropeano’s life is SACRIFICED as she is
left helpless; STRIPPED OF ALL LEGITIMATE INSULIN!
(Doc. 1-3 at 16.)

The Tropeanos claim that when they drive to a

pharmacy, the parking lot and/or surrounding streets attract a
“SWARM OF CULT CARS PARKED THERE AS WELL,” and that photographs
and videos can document this fact.

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Id. at 21.

Their filing

explains that “[a]ll documents and evidence will be addressed
when The United States Attorney et. al; investigates and
prosecutes Phyllis Lienwand and her deadly, demonic cult, et. al;
who created a lethal, nightmare existence for The Tropeanos . . .
.”

Id.
The Tropeanos have provided the Court with hundreds of pages

of documents, including pleadings from prior federal litigation,
copies of correspondence with federal law enforcement, and
references to a series of YouTube videos featuring their
discussions about, among other things, the alleged cult
conspiracy.

For relief, they ask the Court to “refer the

Tropeanos’ American Atrocity, precedent case to: A) The United
States Attorney; B) Interstate Attorney Generals; [and] C) Bernie
Sanders, et al . . . .”

(Doc. 1-4 at 17.)

They also request a

cease and desist order with respect to Phyllis Lienwand and her
alleged cult.

Id.
Discussion

The threshold issue before the Court is whether the
Tropeanos have, in fact, initiated a civil action.

Although they

moved the Court to allow them “to file this action . . . without
prepayment of fees and costs,” (Doc. 1 at 1) (emphasis added),
their papers specifically state that they “are NOT filing a court
case.”

(Doc. 1-1 at 4.)

When the Clerk’s Office accepted their

in forma pauperis motion and labeled much of the accompanying

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documentation a “Proposed Complaint,” the Tropeanos immediately
submitted a notice to the Court stating that the “complaint” was
filed without their consent, and asking that it be “IMMEDIATELY
WITHDRAWN.”

(Doc. 3 at 4-5.)

The motion to withdraw further

explains that rather than filing a complaint, their intent was to
file “an Emergency, Urgent Injunction to Save Their Lives! / It
is not a Complaint/Lawsuit.”

Id. at 2.

Under the Federal Rules of Civil Procedure, “[t]here is one
form of action – the civil action.”

Fed. R. Civ. P. 2.

The

purpose of Rule 2 is to ensure that “there is a single procedural
framework for all federal civil proceedings.”

4 Charles A.

Wright, et al., Federal Practice & Procedure § 1042 (3d ed.
2002).

Pursuant to Federal Rule of Civil Procedure 3, “[a] civil

action is commenced by filing a complaint with the court.”
R. Civ. P. 3.

Fed.

“The Advisory Committee Notes to Rule 3 state that

the rule ‘governs the commencement of all actions.’” Gibson v.
R.G. Smith Co., 915 F.2d 260, 262 (6th Cir. 1990).

As one

district court recently noted, “[a] motion for an injunction is
not a complaint and does not suffice to start a civil action.”
Fields v. Schaffer, 2007 WL 2892007, at *1 (E.D. Pa. Oct. 3,
2007).
The Tropeanos have come to this Court seeking injunctive
relief.

In essence, they have asked the court to accept their

documents, and to then “refer” the documents to prosecutors and

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members of Congress.

However, if there is no complaint before

the Court, there is no civil action and the Court cannot act on
their request for relief.

See Fed. R. Civ. P. 2.1

Accordingly, the Tropeanos’ motion to withdraw (Doc. 3) is
GRANTED, and this case is DISMISSED under the provisions of Fed.
R. Civ. 41(a)(1)(A) and (B).
It is further certified that any appeal taken in forma
pauperis from this Order would not be taken in good faith because
such an appeal would be frivolous.

See 28 U.S.C. § 1915(a)(3);

Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
Dated at Brattleboro, in the District of Vermont, this 1st
day of February, 2013.

/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

1

Furthermore, decisions “whether to prosecute and what
charge to file . . . are decisions that generally rest in the
prosecutor’s discretion.” United States v. Batchelder, 442 U.S.
114, 124 (1979); see also Heckler v. Chaney, 470 U.S. 821, 832
(1985) (noting that “it is the Executive who is charged by the
Constitution to ‘take Care that the Laws be faithfully executed.’
U.S. Const., Art. II, § 3”); see also, e.g., Tia v. Criminal
Investigating Demand as Set Forth, 2010 WL 3064472, at *3 (D.
Hawaii Aug. 5, 2010) (holding that the plaintiff lacked standing
to ask the court to order the investigation or prosecution of any
individual under the criminal provisions of the RICO Act).
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