Smith v. Walton et al

Filing 12

ORDER DISMISSING CASE without prejudice for failure to comply with a court order and for failing to state a claim upon which relief may be granted. Signed by Judge J. Phil Gilbert on 12/3/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CORNELIUS E. SMITH,
No. 19480-075,
Plaintiff,
vs.
JEFFERY S. WALTON, et al.
Defendants.

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CIVIL NO. 14-cv-00978-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
On September 8, 2014, Cornelius E. Smith, an inmate housed at the United States
Penitentiary at Marion, Illinois, filed a document captioned

“Plaintiff’s Motion for an

Emergency Preliminary Injunction Pursuant to Federal Rule of Civil Procedure #65(a) & (b), As
a Precurser to Motion for 28U.S.C. -§2241” [sic] (Doc. 1). The action was characterized for
administrative purposes as a civil rights action, not a habeas corpus action (Doc. 3). Smith was
subsequently given an opportunity to file a viable amended complaint (Doc. 4).

He was

forewarned that failure to file a proper complaint by the prescribed deadline would result in the
dismissal of this action, and that such a dismissal would count as one of his allotted “strikes”
under the provisions of 28 U.S.C. § 1915(g). His amended pleading was also flawed; in fact, it
became even less clear whether Smith was attempting to file a civil rights action or a habeas
corpus action. Smith was given a final opportunity to file a proper pleading—civil rights or
habeas corpus (Doc. 9).
Smith did not file an amended pleading of any sort by the October 15, 2014, deadline.
On November 13, 2014, Smith filed a “Motion to Submit the Remainder of the Remedy(s) the

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U.S. Attorney-General Mandated Grievance Procedure(s)” [sic] (Doc. 11). Although it remains
unclear whether Smith desires to proceed with a civil rights action or a petition for writ of habeas
corpus, he makes clear that he has not exhausted his administrative remedies.

Therefore,

dismissal of this action is warranted. Dismissal will be without prejudice so that when Smith has
exhausted whatever administrative remedies are available and has determined what type of
action he desires to pursue, he may initiate a new action.
This case was characterized as being a civil rights action, but because of its muddled
nature Plaintiff will be given the benefit of the doubt in all respects. More specifically, he will
not be given a “strike” under 28 U.S.C. § 1915(g). The Court will also accept the $5.00 habeas
corpus filing fee that has already been paid and not demand payment of the full $400 filing fee
that would normally be assessed for a civil rights action.
IT IS THEREFORE ORDERED this action is DISMISSED without prejudice for
failure to comply with a court order and for failing to state a claim upon which relief may be
granted. See Fed.R.Civ.P. 41(b); 28 U.S.C. § 1915A(b)(1).

Judgment shall enter accordingly

and this case will be closed.
IT IS FURTHER ORDERED that Smith’s motion for pauper status (Doc. 7) is
DENIED AS MOOT.
IT IS SO ORDERED.
DATED: December 3, 2014
s/J. Phil Gilbert
United States District Judge

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