Walden v. Davis

Filing 8

ORDER DISMISSING CASE with prejudice for failure to comply with an order of this Court. This dismissal shall count as one of Plaintiff's three allotted "strikes" within the meaning of 28 U.S.C. § 1915(g). Signed by Judge Michael J. Reagan on 10/24/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID WALDEN, # K-51005,
Plaintiff,
vs.
RANDY DAVIS,
Defendant.

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Case No. 13-cv-00854-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
On August 19, 2013, Plaintiff filed a complaint against Vienna Correctional
Center’s warden, Randy Davis, pursuant to 42 U.S.C. § 1983 and the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346, 2671-2680, for claims arising from the conditions of his
confinement at Vienna (Doc. 1). The complaint failed to state a cognizable claim under § 1983
or the FTCA. Therefore, on September 12, 2013, the Court dismissed the complaint without
prejudice (Doc. 5). Plaintiff was granted leave to file an amended complaint addressing those
defects noted in the original complaint on or before October 15, 2013. This deadline has since
passed. Plaintiff has not filed an amended complaint.
As a result, this case 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). This dismissal shall count
as one of Plaintiff’s three allotted “strikes” within the meaning of 28 U.S.C. § 1915(g).
If Plaintiff wishes to appeal this dismissal, he may file a notice of appeal with this
Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A motion for
leave to appeal in forma pauperis should set forth the issues Plaintiff plans to present on appeal.
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See FED. R. APP. P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for the
$455.00 appellate filing fee 1 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, if the appeal is found to be nonmeritorious, Plaintiff may also incur a “strike.”
A 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).
The Clerk’s Office is DIRECTED to close this case and enter judgment
accordingly.
IT IS SO ORDERED.
DATED: October 24, 2013
s/ MICHAEL J. REAGAN
United States District Judge

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The appellate filing fee increases to $500.00 for any appeal filed on or after December 1, 2013.

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