Czapiewski et al v. THURMER et al

Filing 8

Order on ifp request: Petitioner Ciarpaglini ineligible for ifp pursuant to 28 U.S.C. 1915(g). Full filing fee required. Fee due by 11/26/2007 or case to be dismissed as to Petitioner Ciarpaglini. Signed by Judge Barbara B Crabb on 11/7/07. (krj)

Czapiewski et al v. THURMER et al

Doc. 8

Case: 3:07-cv-00549-bbc

Document #: 8

Filed: 11/08/2007

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------D A V ID CZAPIEWSKI and R O B ER T CIARPAGLINI, ORDER Plaintiffs, 0 7 -C -5 4 9 -C v. M IC H A EL THURMER, MICHAEL MEISNER, D O N STRAHOTA, KATHYRYN ANDERSON, B Y R A N BARTOW, AMY FREEMAN and S AR AH DONOVAN, D efendan ts. --------------------------------------------T h is case has been assigned to me following entry of an order dated November 5, 2007, in which the Hon. John C. Shabaz recused himself. A review of the complaint reveals that it must be dismissed with respect to plaintiff Robert Ciarpaglini unless, on or before N ovem ber 26, 2007, Ciarpaglini pays the $350 fee for filing this action as required by B o rib ou ne v. Berge, 391 F.3d 852 (7th Cir. 2004)(each prisoner plaintiff in group complaint respo nsible for paying full filing fee). Plaintiff Ciarpaglini is aware that he is not eligible to p ro cee d in forma pauperis in this action because he is subject to the three strikes bar described in 28 U.S.C. § 1915(g), and because the action does not allege facts from which

1

Dockets.Justia.com

Case: 3:07-cv-00549-bbc

Document #: 8

Filed: 11/08/2007

Page 2 of 4

an inference may be drawn that Ciarpaglini is in imminent danger of serious physical harm. T he only allegations pertaining to Ciarpaglini in the complaint are that he wishes to assist o th er inmates with their legal work and that defendants have issued a directive forbidding him from giving other inmates legal assistance. In Ciarpaglini's view, these orders are un con stitution ally vague and overbroad and violate his First Amendment rights. Furthermore, the complaint will be dismissed with respect to plaintiff David Czapiew ski unless, on or before November 26, 2007, plaintiff Czapiewski submits an am ended complaint in his own hand and advises the court that he is prepared to prosecute the case without plaintiff Ciarpaglini's assistance. The complaint presently on file in this case is written in Ciarpaglini's hand. It is thus subject to dismissal under Kuruc v. Fiedler, 9 3 -C -3 2 4 -C (W.D. Wis. Dec. 14, 1993), in which I held that plaintiff Ciarpaglini may not file any action in this court on behalf of any other inmate. Thus, even if plaintiff Ciarpaglini pays the fee for filing his action and plaintiff Czapiewski files an amended complaint in his ow n hand, I will sever the actions and plaintiff Czapiewski will be required to prosecute his claim s by himself without plaintiff Ciarpaglini's help. Finally, I note that after plaintiff David Czapiewski paid the $350 fee for filing his action, Judge Shabaz directed that the clerk issue summonses to the plaintiffs and that plaintiffs serve their summons and complaint on the defendants. However, Judge Shabaz did not screen the merits of plaintiffs' claims as 28 U.S.C. § 1915A directs. Therefore, I am

2

Case: 3:07-cv-00549-bbc

Document #: 8

Filed: 11/08/2007

Page 3 of 4

sending a copy of this order to Assistant Attorney General Corey Finklemeyer so that he can advise the assistant attorney general assigned to represent the defendants in this case that defendants need not file an answer to the complaint at this time. If plaintiff Ciarpaglini pays the fee for filing his action, I will screen the complaint. If the complaint survives screening, a date will be set within which the defendants against whom plaintiff is allowed to proceed m ay file their answer. Likewise, if plaintiff Czapiewski files an amended complaint, I will enter an order severing his action from this one and I will screen the amended complaint. If the amended complaint survives screening, I will arrange for informal service of process on the defendants against whom Czapiewski is allowed to proceed and the answer of those defendan ts will be due within the time permitted under the terms of that agreement.

ORDER IT IS ORDERED that 1. On or before November 26, 2007, plaintiff Robert Ciarpaglini is to pay a $350 fee for filing his action in this case. If, by November 26, 2007, plaintiff Ciarpaglini does not pay the full filing fee, this case will be dismissed as to him. Nevertheless, he will continue to owe the fee and he must pay it in full when he has the funds to do so or in installments in accorda nce with 28 U.S.C. § 1915(b)(2). 2. On or before November 26, 2007, plaintiff David Czapiewski is to submit an

3

Case: 3:07-cv-00549-bbc

Document #: 8

Filed: 11/08/2007

Page 4 of 4

am ended complaint in his own hand and advise the court that he is prepared to prosecute the case without plaintiff Ciarpaglini's help. If, by November 26, 2007, plaintiff Czapiewski fails to comply with this order, the action will be dismissed as to him. 3. If either plaintiff satisfies the directives in this order, he is to refrain from filing ad ditio n al papers in his case until I have screened his complaint under 28 U.S.C. § 1915A an d, if appropriate, issued an order permitting him to proceed further his action. 4. Through a copy of this order, I am advising Assistant Attorney General Corey Fink elm eyer that no defendant is required to file an answer to the complaint filed in this case un til I have granted one or both of the plaintiffs permission to proceed after screening their com plaints in accordance with 28 U.S.C. § 1915A. Entered this 7th day of November, 2007. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

4