United States District Court, S.D. Illinois
WILLIAM A. MALONE, # B-52858, Plaintiff,
ILLINOIS DEPT. of CORRECTIONS, PINCKNEYVILLE CORRECTIONAL CENTER, THOMAS SPILLER, C/O BELFORD, DONNA HEIDLEMANN, MAJOR CLELAND, and JOHN DOE 1-7, Defendants.
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE.
matter is before the Court for case management. On December
4, 2017, this Court denied Plaintiff's application to
proceed in forma pauperis (“IFP”) in
this case, and ordered him to pay the $400.00 filing fee no
later than December 26, 2017 (Doc. 5). Plaintiff has incurred
10 “strikes” within the meaning of 28 U.S.C.
§ 1915(g), and is thus unable to proceed IFP unless he
can demonstrate that he is in imminent danger of serious
deadline to pay the filing fee has passed, and Plaintiff has
failed to pay. The Court's Order clearly warned Plaintiff
that failure to pay the filing fee would result in dismissal
of this case.
IS THEREFORE ORDERED THAT this action is
DISMISSED with prejudice, for failure to
comply with an Order of this Court. Fed.R.Civ.P. 41(b).
See generally Ladien v. Astrachan, 128 F.3d 1051
(7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466
(7th Cir. 1994); Lucien v. Breweur, 9 F.3d 26, 29
(7th Cir. 1993) (dismissal for failure to prosecute is
presumptively with prejudice).
pending motions are DENIED AS MOOT.
dismissal shall not count as a “strike” under 28
U.S.C. § 1915(g).
is REMINDED that he has been
ORDERED to DISCLOSE his
complete litigation history in any future complaint he may
file in this Court, including the fact that he has incurred
ten (10) “strikes” within the meaning of 28
U.S.C. §1915(g). (Doc. 5). If Plaintiff fails to make
this disclosure, any case in which his litigation history is
omitted shall be subject to immediate dismissal, and
Plaintiff shall continue to be liable for the full filing fee
despite the dismissal.
addition, if Plaintiff seeks to proceed IFP in a future
lawsuit, but fails to demonstrate that he is in immediate
danger of serious physical injury within the meaning of 28
U.S.C. § 1915(g), this Court shall consider imposing a
filing ban on him. See Newlin v. Helman, 123 F.3d
429, 437 (7th Cir. 1997) (citing Support Sys. Int'l,
Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995)) (“A
prisoner who becomes ineligible under § 1915(g) to
continue litigating in forma pauperis, and who then
files additional suits or appeals yet does not pay the
necessary fees, loses the ability to file future civil
suits.”), overruled on other grounds by Lee v.
Clinton, 209 F.3d 1025 (7th Cir. 2000); Sloan v.
Lesza, 181 F.3d 857, 859 (7th Cir. 1999)
(“[U]npaid docket fees incurred by litigants subject to
§ 1915(g) lead straight to an order forbidding further
obligation to pay the filing fee for this action was incurred
at the time the action was filed, thus 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).
end, the agency having custody of the Plaintiff is
DIRECTED to remit the $400.00 filing fee
from his prison trust fund account if such funds are
available. If he does not have $400.00 in his 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, Plaintiff shall make
monthly payments of 20% of the preceding month's income
credited to Plaintiff's prison trust fund account until
the $400.00 filing fee is paid in full. The agency having
custody of Plaintiff shall forward these payments from the
Plaintiff's trust fund account to the Clerk of this Court
each time the Plaintiff's account exceeds $10.00, until
the $400.00 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 Pinckneyville
Correctional Center upon entry of this Order.
Clerk shall CLOSE THIS CASE and enter
Plaintiff wishes to appeal this dismissal, his notice of
appeal must be filed with this Court within thirty days of
the entry of judgment. Fed. R. App. P. 4(a)(1)(A). 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. P. 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 v.
Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). Moreover,
because Plaintiff has “struck out” and has not
shown that he is in imminent danger of serious physical
injury, this Court will not grant him permission to proceed
in forma pauperis on appeal. Finally, 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 the judgment, and this 28-day
deadline cannot be extended.