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Diaz v. Godinez
United States District Court, S.D. Illinois
January 23, 2018
ELIAS DIAZ, #M02281, Plaintiff,
SALVADOR GODINEZ, DONALD STOLWORTHY, GLADYSE TAYLOR, MICHAEL RANDLE, TY BATES, HENRY BAYER, JOHN R. BALDWIN, KIMBERLY BUTLER, RICK HARRINGTON, MICHAEL ATCHISON, SHANNIS STOCK, ALEX JONES, TODD BROOKS, ANTHONY WILLIAMS, JACQUELINE A. LASHBROOK, DOUG LYERLA, WILLIAM REES, BRAD THOMAS, TONY FERRANTO, KEVIN HIRSCH, RICHARD PAUTLER, JAMES R. BROWN, JOSEPH COWAN, CHAD E. HASEMEYER, PAGE, RICHARD D. MOORE, PAUL OLSON, BRIAN THOMAS, BILL WESTFALL, ROBERT DILDAY, EOVALDI, ROBERT HUGHS, RAYMOND ALLEN, JAY ZIEGLER, JAMES BEST, LT. WHITELY, CLINT MAYER, KENT BROOKMAN, MICHAEL SAMUEL, TORVILLE, WILLIAM QUALLS, JAMES A. HOPPENSTED, FRICKY, ROGER SHURTZ, JOSHUA BERNER, DANIEL DUNN, HARRIS, ANTHONY WILLS, SIMMONS, McDANIELS, SPILLER, DONALD LINDENBERG, VERGIL SMITH, KARUSE, REBECCA CREASON, DR. BAIG, MISS GREATHOUSE, MISS WHITESIDE, DR. HILLERMAN, MS. DELONG, SGT. GRAW SGT. McCLURE, GAIL WALLS, BRAD BRAMLET, MISS NEW, SHANE GREGSON, JENNIFER CLENDENIN, TONYA KNUST, MORGAN TEAS, DIA RODELY, KELLIE S. ELLIS, RODNEY ROY, LAFONE, CARLA DRAVES, VERGIL SMITH, SUSAN HILL, MARK PHONIX, J. COWAN, K. ALLSUP, BETSY SPILLER, JEANETTE COWAN, LORI OAKLEY, MARVIN BOCHANTIN, KELLY PIERCE, SHERRY BENTON, TERRI ANDERSON, SARA JOHNSON, HURST, RAKERS, McNEW, M. PRANGE, BRINKLEY, SIMPSON, OBUCINA, FISCHER BRUCE RAUNER, B. SMITH, JEFF HUCHINSON, J. WHITLEY, ELLIS, MENARD CORRECTIONAL CENTER, ILLINOIS DEPARTMENT OF CORRECTIONS, WEXFORD HEALTH SERVICES, INC. UNIDENTIFIED JOHN/JANE DOES, A.F.S.C.M.E., JAMI WELLBORN, MICHAEL MONJIE, LINDA CARTER, DR. KEWLKOWSK, Defendants
MEMORANDUM AND ORDER
HERNDON, UNITED STATES DISTRICT JUDGE
March 27, 2017, Plaintiff Elias Diaz, along with 26 other
inmates at Menard Correctional Center (“Menard”),
filed a pro se civil rights action against 108 known
and numerous unknown officials in the Illinois Department of
Corrections (“IDOC”) pursuant to 42 U.S.C. §
1983. See Bentz v. Godinez, et al., No.
17-cv-00315-MJR (S.D. Ill.) (“original action”).
The Complaint addressed miscellaneous claims against these
individuals for alleged violations of the plaintiffs'
rights under the First, Sixth, Eighth, and Fourteenth
Amendments and Illinois state law. (Doc. 1). The original
action has a complicated procedural history that is
summarized in the Memorandum and Severance Order dated
November 17, 2017. Id. In the same Order, the Court
determined that joinder was improper under Federal Rules of
Civil Procedure 20 and 21 and severed Plaintiff Diaz's
claims into the instant case. Id. In the same Order,
the Court dismissed the First Amended Complaint (Docs. 99,
100, 116, original action) for failure to comply with Rule 8
of the Federal Rules of Civil Procedure. Id.
Diaz was granted leave to file a Second Amended Complaint on
or before December 15, 2017. (Doc. 1, p. 11). He was warned
that the action would be dismissed with prejudice, if he
failed to file the Second Amended Complaint consistent with
the deadline and instructions set forth in the Court's
Memorandum and Severance Order. Id. (citing
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)). Plaintiff was also warned that he would
incur a “strike” pursuant to 28 U.S.C. §
filed a Motion for Extension to File Second Amended Complaint
on December 6, 2017. (Doc. 8). The Court granted a 30-day
extension of the deadline. (Doc. 9). Under the extended
deadline, Plaintiff's Second Amended Complaint was due on
or before January 16, 2018. Id. In the same Order,
the Court reiterated that “[f]ailure to file the Second
Amended Complaint by this deadline or consistent with the
instructions set forth in the Memorandum and Severance Order
dated November 17, 2017, shall result in dismissal of this
action with prejudice and with a ‘strike.'”
Id. (citing 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)).
these repeated warnings, Plaintiff missed the deadline for
filing the Second Amended Complaint on January 16, 2018. More
than a week has passed since the deadline expired, and he has
not requested another extension of the deadline. In fact, the
Court has received no communications from Plaintiff since
December 6, 2017. (Doc. 8).
Court will not allow this matter to linger indefinitely. This
action shall be dismissed with prejudice based on
Plaintiff's failure to comply with the Orders (Doc. 1, p.
11; Doc. 9) to file a Second Amended Complaint and
Plaintiff's failure to prosecute his claims. See
Fed. R. Civ. P. 41(b). The dismissal will count as one of
Plaintiff's three allotted “strikes” within
the meaning of § 1915(g).
HEREBY ORDERED that this action is DISMISSED with prejudice,
based on Plaintiff's failure to comply with the
Court's Orders (Doc. 1, p. 11; Doc. 9) to file a Second
Amended Complaint and Plaintiff's failure to prosecute
his 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). This dismissal
counts as one of Plaintiff's three allotted
“strikes” within the meaning of § 1915(g).
ALSO ORDERED that Plaintiff's pending Motion for Service
of Process at Government Expense (Doc. 6) and Motion for
Recruitment of Counsel (Doc. 5) are both DENIED as MOOT. The
Motion for Recruitment of Counsel is also denied because
Plaintiff made no effort to retain counsel on his own before
seeking the Court's assistance, and the Court is unable
to assess Plaintiff's ability to litigate his claims
absent more clearly defined claims in an operative Second
FURTHER 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. Accordingly, the filing fee of $350.00 remains due
and payable. See 28 U.S.C. § 1915(b)(1);
Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.
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 ...