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Smith v. Revell

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


November 9, 2007

JAMES T. SMITH, PLAINTIFF,
v.
SARA M. REVELL, DEFENDANT.

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

MEMORANDUM AND ORDER

This action is before the Court on Plaintiff's "notice of acceptance of in forma pauperis" (Doc. 11) which the Court liberally construes as a motion to reconsider the Court's prior Memorandum and Order ("Order") granting Plaintiff leave to proceed in forma pauperis (Doc. 9). Also before the Court is Plaintiff's motion for entry of default (Doc. 7), his motion for summary judgment (Doc. 8), and his motion for injunctive order (Doc. 10).

On June 25, 2007, this Court granted Plaintiff's motion to proceed in forma pauperis. Plaintiff, however, was also orderedto "complete, sign and return one 'Consent Form -- In Forma Pauperis Proceedings' to the Clerk of Court" within fifteen days. The Consent Form authorizes the Bureau of Prisons to deduct the filing fee from Plaintiff's prison trust fund account as provided in 28 U.S.C. § 1915(b). In his "notice of acceptance of in forma pauperis," Plaintiff states he is returning the Consent Form to the Court unsigned because he believes that the Consent Form is "an unconscionable contract."

Regardless of whether Plaintiff believes the Consent Form is unconscionable, the execution of the Consent Form by Plaintiff is still required by this Court because Plaintiff is confined in a facility operated by the Bureau of Prisons. Put simply, if Plaintiff fails to complete, sign, and return the Consent Form, then his complaint will be dismissed for failing to comply with an Order of this Court. See Fed. R. Civ. P. 41(b).

Because Plaintiff has not completed, signed and returned his Consent Form and because his complaint is still under threshold review as provided in 28 U.S.C. § 1915A, Plaintiff's motions for entry of default, for summary judgment, and for injunctive order are premature.

Accordingly, IT IS HEREBY ORDERED that Plaintiff's motions for entry of default, for summary judgment, and for injunctive order are DENIED.

IT IS FURTHER ORDERED that Plaintiff shall complete, sign and return one "Consent Form -- In Forma Pauperis Proceedings" to the Clerk of Court in the envelope provided, within FIFTEEN (15) DAYS of the date of entry of this order. The Clerk is DIRECTED to provide two copies of the appropriate form to Plaintiff with his copy of this Order, along with a pre-addressed return envelope. Failure to provide the Bureau of Prisons with this authorization shall be grounds for dismissal of this case. Fed. R. Civ. P. 41(b); see generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994). Plaintiff, however, will still be liable for the full filing fee for this action.

IT IS SO ORDERED.

J. Phil Gilbert U. S. District Judge

20071109

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