United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Gilbert, District Judge:
matter is before the Court to address Plaintiffs First
Amended Complaint (Doc. 11), submitted to the Court on August
31, 2017, and filed on September 6, 2017. (Doc. 11-1, p. 6).
Plaintiff filed this First Amended Complaint well beyond the
Court's deadline, and after the entry of judgment in this
case. It shall therefore not be considered at this time.
12, 2017, this Court dismissed the original Complaint
pursuant to 28 U.S.C. § 1915 A for failure to state a
claim upon which relief may be granted, and ordered Plaintiff
to file an amended complaint no later than August 9, 2017, if
he wished to pursue his deliberate indifference claim in
Count 1. (Doc. 8). The order warned Plaintiff that this case
would be dismissed with prejudice if he failed to timely
submit an amended complaint. He was further advised that such
a dismissal would count as a "strike" under 28
U.S.C. § 1915(g).
did not submit an amended complaint by the August 9 deadline,
nor did he file a motion seeking additional time. On August
24, 2017, the Court dismissed this action with prejudice,
assessed a strike, and entered judgment. (Docs. 9, 10). The
dismissal order notified Plaintiff that if he wished to
appeal, his notice of appeal must be filed within 30 days of
the entry of judgment. That 30-day deadline falls on
September 25, 2017. Plaintiff was also advised that he could
file a motion to alter or amend the judgment pursuant to Rule
59(e) of the Federal Rules of Civil Procedure within 28 days.
(Doc. 9). This 28-day deadline falls on September 21, 2017.
has not filed a notice of appeal or a Rule 59(e) motion.
Instead, he submitted his First Amended Complaint after his
case was already closed, and more than 3 weeks past his
deadline. It is evident that Plaintiff received the order
dismissing his case, because he refers to this case having
been dismissed on August 24, 2017, and states: “I want
to proceed a [sic] appeal my lawsuit.” (Doc. 11-1, p.
3). On another page, he writes “A motion for leave to
appeal in forma pauperis to proceed [sic].” (Doc. 11,
plaintiff may only be permitted to amend his complaint after
entry of judgment if the judgment has first been vacated or
set aside pursuant to either Federal Rule of Civil Procedure
59(e) or 60(b), and the case has been reopened. See
Sparrow v. Heller, 116 F.3d 204, 205 (7th Cir. 1997).
See also Foster v. DeLuca, 545 F.3d 582, 584 (7th
Cir. 2008) (district court lacks jurisdiction to consider a
motion for leave to amend the complaint unless the plaintiff
also moves for relief from the judgment). Failure to seek
vacation of the judgment is grounds for denying a request for
post-judgment amendment. Sparrow, 116 F.3d at 205
(citing Diersen v. Chicago Car Exchange, 110 F.3d
481, 488 n. 6 (7th Cir. 1997)).
Plaintiff has not filed a Rule 59(e) motion to set aside the
judgment, nor has he filed a motion seeking leave to amend. A
court may construe a post-judgment request to amend the
complaint as a motion to vacate the dismissal, but is not
obligated to do so. See Chaudhry v. Nucor Steel
Indiana, 546 F.3d 832, 839 (7th Cir. 2008); Camp v.
Gregory, 67 F.3d 1286, 1290 (7th Cir. 1995). This Court
is reluctant to construe Plaintiff's submission as a
motion to vacate the judgment, however, because Plaintiff
indicates within the document that he wishes to appeal the
dismissal of his case. Alternatively, the Court might
construe the document as a notice of appeal, but without more
clarity as to Plaintiff's intention, the Court is
reluctant to take that step, as it would result in Plaintiff
incurring an appellate filing fee as well as expose him to
the assessment of another strike. See Smith v.
Barry, 502 U.S. 244, 248 (1992) (document may be
accepted as a notice of appeal if it is a “functional
equivalent”); see also Smith v. Grams, 565
F.3d 1037, 1041-42 (7th Cir. 2009).
still has time to choose either course of action now open to
him, if he acts promptly. He may either: (1) file a Rule
59(e) motion to vacate the judgment so that he may seek to
amend his complaint, which motion must be filed no later than
September 21, 2017; or (2) file a notice of appeal, no later
than September 25, 2017. (See Doc. 9). If he does not take
one of these 2 steps within the applicable time limits, the
judgment in this case will become final.
IS THEREFORE ORDERED that the First Amended
Complaint (Doc. 11) shall not be considered at this time,
because it was submitted after entry of the judgment in this
case, and to date, Plaintiff has not filed a motion seeking
to vacate the judgment.
 Because the 30th day falls
on a Saturday, the last day for Plaintiff to file his notice
of appeal is Monday, September 25, 2017. See Fed. ...