December 18, 2013
SHERWIN ALONZO, Plaintiff,
OFFICER SUDLOW and KEITH O. ANGLIN, Warden of Danville Correctional Center, Defendants.
COLIN S. BRUCE, District Judge.
This cause is before the Court sua sponte.
On October 3, 2013, the Court denied Plaintiff Sherwin Alonzo's motion for leave to file an Amended Complaint. However, the Court gave Alonzo one more opportunity to file a proper amended complaint, giving him 21 days to do so.
As of today, Alonzo has not filed an Amended Complaint. Because Alonzo's Original Complaint and his proposed Amended Complaint fail to state a cause of action upon which relief can be granted and because Alonzo has failed to file a Second Amended Complaint (after being given the opportunity to do so) that states a claim upon which relief can be granted, this case is dismissed.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff Sherwin Alonzo's Complaint is dismissed for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) and 28 U.S.C. § 1915A. Any further amendment to the Complaint would be futile because Plaintiff's claim is not cognizable.
2. This dismissal shall count as one of Plaintiff's three allotted "strikes" pursuant to 28 U.S.C. Section 1915(g).
3. Plaintiff must still pay the full docketing fee of $350 even though his case has been dismissed. The agency having custody of Plaintiff shall continue to make monthly payments to the Clerk of Court as directed in the Court's prior Order.
4. If Plaintiff wishes to appeal this dismissal, he must file a notice of appeal with this Court within 30 days of the entry of judgment. Fed. R. App. P. 4(a). A motion for leave to appeal in forma pauperis should set forth the issues Plaintiff plans to present on appeal. Fed. R. App. P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for the $505 appellate filing fee irrespective of the outcome of the appeal.
5. This case is, therefore, closed, and the clerk is directed to enter a judgment pursuant to Federal Rule of Civil Procedure 58. The Clerk of the Court is directed to record Plaintiff's strike in the three-strike log. All pending motions are DENIED as moot.