United States District Court, S.D. Illinois
WILLIAM A. MALONE, #B52858, Plaintiff,
WEXFORD HEALTH CARE SOLUTIONS, INC., IDOC, WARDEN, ASSISTANT WARDENS 1 AND 2, MAJOR MALCOME, MAJOR CLELAND, MR. BALDWIN, SHERRY BENTON, ARB CHAIRPERSON, PINCKNEYVILLE CORRECTIONAL CENTER, CHRISTINE BROWN, MRS. BUTLER, MR. SMITH, MS. HILL, MS. MASON, MS. STAYCIE, MS. RETOHTIC, MR. TAYLOR, and JANE AND JOHN DOES, Defendants.
MEMORANDUM AND ORDER
MICHAEL J. REAGAN CHIEF UNITED STATES DISTRICT JUDGE
pro se, Plaintiff William Malone filed a Complaint
pursuant to 42 U.S.C. § 1983 in this District on October
2, 2010. (Doc. 1). The Complaint was obviously incomplete. It
consisted of pages numbered “9 of, ” “10
of, ” “10 of, ” “1 of 1, ” and
“17 of 17” and made little sense. Id.
The Court entered an Order dismissing the original Complaint
on October 11, 2017. (Doc. 5).
was ordered to confirm his intent to pursue this action in
writing no later than November 8, 2017. (Doc. 5). The Court
also ordered him to submit a First Amended Complaint by the
same deadline, if he wished to proceed with his claims.
Id. Plaintiff was warned that failure to respond by
the deadline would result in dismissal of the action and the
assessment of the full filing fee. Id. (citing
Fed.R.Civ.P. 41(b)). See also Ladien v. Astrachan,
128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga,
34 F.3d 466 (7th Cir. 1994).
these warnings, Plaintiff missed the deadline for filing the
First Amended Complaint. A week has passed since the deadline
expired. Plaintiff has not requested an extension or filed a
First Amended Complaint. In fact, he has not communicated
with the Court at all since filing his Complaint on October
2, 2017. The Court will not allow this matter to linger
action shall be dismissed with prejudice based on
Plaintiff's failure to comply with a court order (Doc. 5)
and for failure to prosecute his claims. See Fed. R.
Civ. P. 41(b). The dismissal shall not count as one
of Plaintiff's three allotted “strikes”
within the meaning of 28 U.S.C. § 1915(g). However,
because Plaintiff has “struck out” and failed to
demonstrate that he faces imminent danger of serious physical
injury, his request to proceed in forma pauperis in
this action shall be denied.
IS HEREBY ORDERED that this action is
DISMISSED with prejudice, based on
Plaintiff's failure to comply with this Court's Order
(Doc. 5) dated October 11, 2017. 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 his
three allotted “strikes” within the meaning of
IS ALSO ORDERED that Plaintiff'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. Because he previously “struck out”
and has not demonstrated that he faces imminent danger of
serious physical injury, Plaintiff's Motion for Leave to
Proceed in forma pauperis (Doc. 2) is
DENIED. Plaintiff remains obligated to pay
the full $400.00 filing fee for this action, regardless of
this dismissal. See 28 U.S.C. § 1915(b)(1);
Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.
IS FURTHER ORDERED that Plaintiff's pending
Motion for Recruitment of Counsel (Doc. 3) is
DENIED as MOOT.
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 judgment accordingly.
IS SO ORDERED.