United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE United States District Judge.
Dennis Riley, an individual who is currently on parole,
brings this pro se action for alleged violations of
his constitutional rights under 42 U.S.C. § 1983. (Doc.
1). Plaintiff claims that Defendant, Steven Kwiatkowski, a
correctional officer at Vienna Correctional Center
(“Vienna”), deliberately refused him access to
medical care for a serious medical condition, in violation of
the Eighth Amendment. (Doc. 1, p. 5). Specifically, Plaintiff
alleges that as a result of Defendant's refusal to give
him access to medical care, he was forced to undergo an
emergency tracheotomy. In connection with this claim,
Plaintiff seeks a written apology from the defendant,
punitive damages and for the Illinois Department of
Corrections (“IDOC”) to conduct training of
employees regarding medical emergencies.
November 7, 2016, Plaintiff's Complaint was dismissed
without prejudice for failure to state a claim upon which
relief may be granted. (Doc. 7). Plaintiff was allowed until
December 5, 2016 to file an amended complaint. Id.
On December 21, 2016, the Court denied Plaintiff's
pending Motion for Recruitment of Counsel. (Doc. 9). That
Order sua sponte granted Plaintiff a brief
extension, until December 28, 2016, with regard to filing his
amended complaint. Id. Plaintiff was warned, in two
separate orders, that failure to file a First Amended
Complaint would result in dismissal of the action with
prejudice and the assessment of a strike. (Docs. 7, 9).
extended deadline for filing the First Amended Complaint has
now passed. Plaintiff did not file a First Amended Complaint.
He also did not request an extension of the deadline for
doing so. The Court will not allow this matter to linger
the action is hereby DISMISSED with prejudice, based on
Plaintiff's failure to comply with this Court's Order
(Doc. 7). See 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). However, despite
the Court's prior warnings, this dismissal shall
not count as one of Plaintiff's three allotted
“strikes” within the meaning of 28 U.S.C. §
1915(g). In the instant case, Plaintiff was on parole at the
time of filing. Accordingly, the instant dismissal cannot be
counted as a “strike” under the PLRA. Steele
v. Cottey, 234 F.3d 1274 (7th Cir. 2000) (PLRA does not
apply to convicts who file suit after being released from
pending is a Motion for Leave to Proceed In Forma
Pauperis. (Doc. 2). Upon review of the financial
information provided with Plaintiff's motion, the Court
is satisfied that Plaintiff meets the applicable poverty
requirements. Accordingly, the motion is GRANTED.
Plaintiff wishes to appeal this Order, he may file a notice
of appeal with this Court within thirty days of the entry of
judgment. Fed. R. App. 4(A)(4). If Plaintiff does choose to
appeal, he will be liable for the $505.00 appellate filing
fee irrespective of the outcome of the appeal. See
Fed. R. App. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v.
Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008);
Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir.
1999); Lucien, 133 F.3d at 467. Moreover, if the
appeal is found to be nonmeritorious, Plaintiff may also
incur another “strike.” A proper and timely
motion filed pursuant to Federal Rule of Civil Procedure
59(e) may toll the 30-day appeal deadline. Fed. R. App. P.
4(a)(4). A Rule 59(e) motion must be filed no more than
twenty-eight (28) days after the entry of judgment, and this
28-day deadline cannot be extended.
Clerk's Office is DIRECTED to close this case and enter
 For an action or appeal to be deemed a
strike, it must be brought by a prisoner “while
incarcerated or detained in any facility.” 28 U.S.C.
§ 1915(g); Steele v. Cottey, 234 F.3d 1274 (7th
Cir. 2000). For purposes of the PLRA, a prisoner is defined
as “any person incarcerated or detained in any facility
who is accused of, convicted of, sentenced for, or
adjudicated delinquent for, violations of criminal
law.” 28 U.S.C. § 1915(h). Accordingly, an action
brought while an individual is on probation, ...