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Smerling v. Howard

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


June 23, 2010

ROBERT SMERLING, PLAINTIFF,
v.
GLENN HOWARD AND OFFICER REID, DEFENDANTS.

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

MEMORANDUM AND ORDER

This case comes before the Court on docket review.

On March 24, 2010, the Court granted plaintiff Robert Smerling's motion to proceed in forma pauperis and ordered Smerling to pay an initial partial filing fee. The balance due was to be paid within 15 days. Alternatively, Smerling was invited to file a new motion seeking permission to proceed as a pauper with regard to the remaining sum due. He was plainly warned that failure to comply with the order within the allotted time would result in dismissal (Doc. 4, p. 8: "If Plaintiff does not comply with this Order, this case will be dismissed....").

Smerling was not confined on March 24, 2010. He was solely responsible for submitting the fee payment. The March 24, 2010, order was sent to his current address. It was not returned. Thus, the record suggests that the order was received, and the Court presumes that Smerling understood his obligation.

The 15-day period for Smerling to take action expired in early April. Smerling did not pay the initial partial filing fee ($11.55) or make any other payment. Nor did he file a new motion for leave to proceed as a pauper. Also, he did not seek an extension of the deadline to take action. Considerable time has elapsed since that deadline passed, and Smerling still has tendered no explanation for his noncompliance or otherwise indicated that he plans to make a payment towards the filing fee in the future.

Accordingly, the Court DISMISSES this action pursuant to Federal Rule of Civil Procedure 41(b). See, e.g., James v. McDonald's Corp., 417 F.3d 672, 681 (7th Cir. 2005)(Affirming district court's sua sponte Rule 41(b) dismissal for lack of prosecution, the Seventh Circuit emphasized: "Once a party invokes the judicial system by filing a lawsuit, it must abide by the rules of the court; a party can not decide for itself when it feels like pressing its action and when it feels like taking a break, because 'trial judges have a responsibility to litigants to keep their court calendars as current as humanly possible'"). Dismissal shall be without prejudice. This Order RENDERS MOOT all pending motions (Docs. 10, 11).

IT IS SO ORDERED.

Michael J. Reagan United States District Court

20100623

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