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Allan K. Austin, # N-97670, and andrew C. Hruby, #S-07587, Individually and On Behalf of All Others Similarly Situated v. S.A. Godinez

March 7, 2013

ALLAN K. AUSTIN, # N-97670, AND ANDREW C. HRUBY, #S-07587, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
S.A. GODINEZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge:

MEMORANDUM AND ORDER

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 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, v. 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) This Memorandum and Order

(2) The Original Complaint (Doc. 1)

(3) The joint motion to proceed in forma pauperis (Doc. 2)

(4) The joint motion to appoint counsel (Doc. 3)

(5) The joint motion for class action and certification (Doc. 4)

(6) The joint motion for TRO/Preliminary Injunction (Doc. 8)

(7) Plaintiff Hruby's Prisoner Trust Fund Account ...


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