United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Phil Gilbert United States District Judge.
instant case was opened when Plaintiffs Lisa Niepert and
Michelle Williams filed a Complaint in this District on April
5, 2017. (Doc. 1). Plaintiffs challenged the conditions of
their confinement at Bond County Jail in Greenville,
Illinois. Id. However, the Complaint included no
request for relief and no signature for Michelle Williams.
(Doc. 1, p. 6).
addition, both plaintiffs were already parties in one or more
other pending civil rights actions in this District. It was
therefore unclear whether they intended to bring this
separate action or merely intended to file Document 1 as an
amended complaint in another case. Until these preliminary
matters were addressed, the Court could not screen the
Complaint pursuant to 28 U.S.C. § 1915A.
April 12, 2017, this Court entered an Order requiring
Plaintiffs to notify the Court in writing of their intentions
to proceed together in this new case. (Doc. 3). If so, they
were further ordered to file a First Amended Complaint that
included both Plaintiffs' signatures and a request for
relief. Id. Finally, they were ordered to each
prepay the $400.00 filing fee for this new action or submit a
properly completed Motion for Leave to Proceed in forma
pauperis. Id. The deadline for responding to
these orders was May 5, 2017. Id.
Court explicitly warned Plaintiffs that failure to comply
with these orders by the deadline would result in dismissal
of this action with prejudice for failure to comply with a
court order and for failure to prosecute their claims. (Doc.
3, p. 3) (citing Fed.R.Civ.P. 41(b)). The Court also advised
Plaintiffs of their continuing obligation to keep the Clerk
of Court and each opposing party informed of any address
changes by notifying the Court in writing within 7 days after
a transfer or other change in address occurred. (Doc. 3, pp.
3-4). Failure to provide the Court with an updated address
was listed as grounds for dismissal of the action for want of
prosecution. (Doc. 3, p. 4) (citing Fed.R.Civ.P. 41(b)).
Plaintiffs missed the deadline for responding to the Order
dated April 12, 2017. (Doc. 3). Plaintiff Niepert's copy
of the Order was returned undeliverable on April 25, 2017.
(Doc. 4). Plaintiff Williams never responded to it. A week
has now passed since the deadline expired. The Court has
received no communication from either Plaintiff, including a
request for an extension of the deadline. The Court will not
allow this matter to linger.
with the Court's prior warning, this action shall be
dismissed with prejudice for failure to comply with the
Court's Order dated April 12, 2017 (Doc. 3) and for want
of prosecution. Because Plaintiff Niepert is the only
Plaintiff who signed the Complaint or otherwise demonstrated
any involvement in this matter, the Court considers her to be
the only Plaintiff involved in this action. Plaintiff Niepert
remains obligated to pay the full filing fee for this action.
Michelle Williams shall be terminated as a party, and her
obligation to pay the filing fee for this action shall be
Clerk is DIRECTED to
TERMINATE Michelle Williams as a Plaintiff
in CM/ECF. Michelle Williams' obligation to pay the
filing fee for this action is WAIVED.
IS HEREBY ORDERED that the Complaint and this action
are DISMISSED with prejudice because
Plaintiff Niepert failed to comply with this Court's
Order (Doc. 3) dated April 12, 2017, and also failed to
prosecute her claims. 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).
The dismissal does not count as one of Plaintiff Lisa
Niepert's three allotted “strikes” under 28
U.S.C. § 1915(g).
IS ALSO ORDERED that Plaintiff Niepert's
obligation to pay the filing fee for this action was incurred
at the time the action was filed, regardless of subsequent
developments in the case. Accordingly, the filing fee of
$400.00 remains due and payable. See 28 U.S.C.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464,
467 (7th Cir. 1998). Accordingly, the agency having custody
of Plaintiff Niepert is directed to remit the $400.00 filing
fee from her prison trust fund account if such funds are
available. If she does not have $400.00 in her account, the
agency must send an initial payment of 20% of the current
balance or the average balance during the past six months,
whichever amount is higher. Thereafter, the agency shall
begin forwarding monthly payments of 20% of the preceding
month's income credited to Plaintiff Niepert's trust
fund account (including all deposits to the inmate account
from any source) until the statutory fee of $400.00 is paid
in its entirety. The agency having custody of Plaintiff
Niepert shall forward payments from Plaintiff Niepert's
account to the Clerk of Court each time Plaintiff
Niepert's account exceeds $10.00 until the $400.00 filing
fee is paid. Payments shall be mailed to: Clerk of the Court,
United States District Court for the Southern District of
Illinois, P.O. Box 249, East St. Louis, Illinois 62202. The
Clerk is DIRECTED to mail a copy of this
Order to the Trust Fund Officer at the Bond County Jail
upon entry of this Order.
Plaintiff Niepert wishes to appeal this Order, she 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, she 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 judgment accordingly.