United States District Court, S.D. Illinois
CARLOS H. GARCIA, #M41479, Plaintiff,
LAWRENCE CORRECTIONAL CENTER, et al., Defendants.
MEMORANDUM AND ORDER
J. ROSENSTENGEL, CHIEF U.S. DISTRICT JUDGE.
Carlos Garcia, an inmate of the Illinois Department of
Corrections who is currently incarcerated at Pontiac
Correctional Center, and Plaintiff Tariq Bilal filed this
action pursuant to 42 U.S.C. § 1983 alleging the rape of
Plaintiff Garcia by his cellmate, while at Lawrence
Correctional Center. The Complaint was dismissed pursuant to
28 U.S.C. § 1915A and 28 U.S.C. §
1915(e)(2). Both Plaintiffs were granted leave to file
a “First Amended Complaint.” (Doc. 11). Plaintiff
Bilal filed an amended complaint and renewed his Motion for
Leave to Proceed in forma pauperis (“IFP
Motion”). The Court dismissed Plaintiff Bilal's
amended complaint and denied his IFP Motion. (Doc. 21).
Additionally, Plaintiff Bilal was dismissed as party to this
action for lack of standing pursuant to Article III of the
Constitution. (Id. at p. 3). Plaintiff Garcia was
granted leave to file a “Second Amended
Complaint” on or before November 25, 2019.
(Id. at p. 6). He was warned that the action would
be dismissed with prejudice and that the dismissal would
count as a “strike” under 28 U.S.C. §
1915(g), if he failed to file an amended complaint by the
Garcia missed the deadline. More than a week has passed since
it expired. He has not requested an extension or filed an
Court will not allow this matter to linger indefinitely.
Accordingly, this action shall be dismissed with prejudice
for failure to comply with a Court Order (Doc. 21) and/or
prosecute his claims. See Fed. R. Civ. P. 41(b). The
dismissal counts as one of Plaintiff Garcia's three
allotted “strikes” within the meaning of 28
U.S.C. § 1915(g).
IS HEREBY ORDERED that this action is
DISMISSED with prejudice, based on Plaintiff
Garcia's failure to comply with the Court Order to file a
Second Amended Complaint on or before November 25, 2019,
(Doc. 21), and Plaintiff Garcia'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 Garcia's three allotted
“strikes” within the meaning of § 1915(g).
Garcia is further ADVISED that his
obligation to pay the filing fee for this action was incurred
at the time the action was filed. Therefore, 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. 1998).
plaintiff wishes to appeal this Order, he must file a notice
of appeal with this Court within thirty days of the entry of
judgment. Fed. R. App. P. 4(a)(1)(A). If a 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, 133 F.3d at
467. He must list each of the issues he intends to appeal in
the notice of appeal and his motion for leave to appeal
in forma pauperis. See Fed. R. App. P.
24(a)(1)(C). Moreover, if the appeal is found to be
nonmeritorious, a 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.
 Although at the time of filing
Plaintiff Bilal was not a “prisoner” for the
purposes of the IFP statute of the Prison Litigation Reform
Act (“PLRA”), 28 U.S.C. § 1915A, the Court
can allow a civil case to proceed without prepayment of fees,
if the litigant demonstrates that he is indigent under 28
U.S.C. § ...