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Banuelos v. Godinez

United States District Court, Seventh Circuit

January 17, 2014

OLEGARIO ALVARO BANUELOS, #B-74296 Plaintiff,
v.
S.A. GODINEZ, VICTOR A. DOZIER, REYNAL CALDWELL, and ILLINOIS DEPARTMENT OF CORRECTIONS, Defendants.

NOTICE OF IMPENDING DISMISSAL

J. PHIL GILBERT, District Judge.

On October 21, 2013, Plaintiff filed a complaint pursuant to 42 U.S.C. ยง 1983 in the United States District Court for the Northern District of Illinois. See Banuelos v. I.D.O.C., No. 13-cv-7545 (N.D. Ill. Oct. 21, 2013) (Doc. 1). Plaintiff claims that during his incarceration at Vandalia Correctional Center the defendants violated his Eighth Amendment rights (Doc. 1). The case was opened without payment of a filing fee or the filing of a Motion and Affidavit to Proceed in District Court Without Prepaying Fees or Costs.

On November 6, 2013, the case was transferred to this Court (Doc. 5). On the same date, the Clerk sent Plaintiff a letter notifying him of the new case number (Doc. 6). In the same letter, the Clerk advised Plaintiff of his continuing obligation to keep the Clerk informed of any change to his address. The Clerk warned Plaintiff, at that time, that the Court will not independently investigate his whereabouts and instructed him to notify the Court, in writing, of any address change within 7 days after transfer or other change in address occurs. Finally, the Clerk warned Plaintiff that "Failure to do so may result in dismissal of this action for want of prosecution."

On December 3, 2013, the Court entered an Order requiring Plaintiff to pay the $400.00 filing fee or to file a Motion and Affidavit to Proceed in District Court Without Prepaying Fees or Costs no later than January 2, 2014 (Doc. 7). The Clerk provided Plaintiff with a copy of the Motion and Affidavit. The Court also ordered Plaintiff to have the Trust Fund Officer at his facility complete the attached certification and provide the Court with a copy of his trust fund account statement (or institutional equivalent) for the period 4/1/2013 to 10/21/13. Plaintiff was reminded of his obligation to keep the Clerk informed of any change in his address.

Plaintiff advised the Court of an address change in a letter (Doc. 8) that he filed with the Court on December 30, 2013. Plaintiff indicated that he was no longer in prison. Public records reveal that Plaintiff was released from prison on November 20, 2013.[1] He therefore waited more than a month to notify the Court of his address change.

To date, Plaintiff has not tendered payment of the $400.00 filing fee. He has also failed to file a Motion and Affidavit to Proceed in District Court Without Prepaying Fees or Costs. As previously stated, the case cannot proceed at this time without one or the other.

Because it is not clear that Plaintiff received the Order dated December 3, 2013, prior to his release from prison, the Court is re-issuing the following Order: Plaintiff is hereby ORDERED to provide the Court with a filing fee of $400.00 or a completed Motion and Affidavit to Proceed in District Court Without Prepaying Fees or Costs within fourteen (14) days of this Order (on or before January 31, 2014). If Plaintiff files a Motion and Affidavit to Proceed in District Court Without Prepaying Fees or Costs, the Court must review Plaintiff's trust fund account statement for the 6 month period immediately preceding the filing of this action. Thus, Plaintiff is still obligated to have the Trust Fund Officer at his prior prison facility(ies) complete the attached certification and provide a copy of his trust fund account statement (or institutional equivalent) for the period 4/1/2013 to 10/21/13. This information should be mailed to the Clerk of Court at the following address: United States District Court - Southern District of Illinois, 750 Missouri Avenue, East St. Louis, Illinois 62201. The CLERK is DIRECTED to provide Plaintiff with a copy of the Motion and Affidavit to Proceed in District Court Without Prepaying Fees or Costs.

Plaintiff is again ADVISED of his continuing obligation to keep the Clerk and each opposing party informed of any change in his address. The Court will not independently investigate Plaintiff's whereabouts. This shall be done in writing and not later than 7 days after a transfer or other change in address occurs.

Failure to comply with this Order shall result in dismissal of this action for want of prosecution or for failure to comply with a court order under Federal Rule of Civil Procedure 41(b).

IT IS SO ORDERED.


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