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Bentz v. Maue

United States District Court, S.D. Illinois

September 22, 2016

DAVID ROBERT BENTZ, #S-03210, Plaintiff,
v.
NATHANIEL MAUE, et al., Defendants.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL United States District Judge.

         On July 27, 2016, Plaintiff David Bentz filed a complaint (Doc. 1) pursuant to 42 U.S.C. § 1983 against thirty-four known and numerous unknown state officials who allegedly conspired to violate his rights at Menard Correctional Center under the First, Eighth, and Fourteenth Amendments (Doc. 1). Plaintiff failed to prepay the $400.00 filing fee for this action or file a Motion and Affidavit to Proceed in District Court Without Prepaying Fees or Costs (“IFP Motion”) on the date he filed his complaint.

         The Clerk of Court opened this case and sent Plaintiff a letter (Doc. 2) advising him that he must prepay the full filing fee or file an IFP Motion within thirty days. He was instructed to also provide a certified copy of his trust fund account statement for the 6-month period immediately preceding the filing of this action (i.e., from 2/1/2016 to 8/1/2016), if he wished to proceed IFP. The Clerk sent the letter to Plaintiff at the address listed on the complaint and on file with the Clerk's office. Included with the letter was a form IFP Motion. Plaintiff was clearly warned that failure to prepay the full filing fee or file a properly completed IFP Motion within thirty days would result in dismissal of this case (id.).

         On August 17, 2016, this Court entered a formal order to this effect, as well as a notice of impending dismissal (Doc. 3). Plaintiff was explicitly ordered to prepay his full filing fee of $400.00 or file a properly completed IFP Motion (including a certified copy of his trust fund account statement for the period between 2/1/2016 and 8/1/2016) on or before August 26, 2016. The Court clearly warned Plaintiff that failure to comply with the Order would result in dismissal of the action for want of prosecution and/or for failure to comply with an Order of the Court. (Doc. 3, p. 2) (citing Fed.R.Civ.P. 41(b); Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994)).

         On August 26, 2016, Plaintiff filed a handwritten IFP Motion (Doc. 4), which consisted of the following disclosures:

         In Forma Pauperis Application And Financial Affidavit

         I, David Bentz (#S-03210), declare that I am a Plaintiff in the above entitled case. This affidavit constitutes my application to proceed without full pre-payment of fees and in support of motion for appointment of counsel, I also declare that I am unable to pay the cost of these proceedings, and that I am entitled to the relief sought in complaint[.] In support of this motion, I state the following under penalty of perjury:

(1) I, David Robert Bentz, am currently incar[c]erated at Menard Correctional Center and receive idle pay from the institution between the monthly amounts of $0.00 to $10.00.
(2) I am currently unemployed.
(3) I am not married.
(4) Apart from my income stated above in the past (12) months I have received more than $200.00 from the following sources combined:
a. Gary Bentz $0-50.00 per month
b. Diane Bentz $0-40.00 per ...

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