Withers et al v. Godinez et al

Filing 10

ORDER DISMISSING CASE with prejudice for failure to comply with an order of this Court. This dismissal shall count as one of Plaintiffs' three allotted strikes within the meaning of 28 U.S.C. § 1915(g). Signed by Chief Judge Michael J. Reagan on 7/31/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DORCUS WITHERS, and
HENRY BARROWS,
Plaintiffs,
vs.
S. GODINEZ, and
KIMBERLY BUTLER,
Defendants.

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Case No. 3:15-cv-00425-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
On April 17, 2015, Plaintiffs filed a joint complaint against Salvador Godinez and
Warden Kimberly Butler, alleging that their civil rights had been violated when prison officials
did not provide them with an adequate grievance process. (Doc. 1.) On June 8, 2015, the Court
dismissed all three of Plaintiffs’ claims: their freestanding grievance due process claim was not
cognizable and was dismissed with prejudice; their access to courts claim did not indicate that a
failure to respond to grievances deprived Plaintiffs of use of the courts and was dismissed
without prejudice; and their conspiracy claim did not include allegations indicating any express
or implied agreement among Godinez and Butler to deprive Plaintiffs of their rights and was
dismissed without prejudice. (Doc. 9.) The Court gave Plaintiffs thirty-five days (until July 13,
2015) to file an amended complaint concerning their access to courts and conspiracy claims.
(Id.) Plaintiffs were warned that a failure to file an amended complaint within that time period
“shall result in the dismissal of this action with prejudice.” (Id. at 6.)
Thirty-five days has now come and gone, and Plaintiffs have not filed an amended
complaint. Accordingly, this case is DISMISSED with prejudice for failure to comply with an
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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 Plaintiffs’ three allotted “strikes” within the meaning of 28 U.S.C. § 1915(g). Plaintiffs’
pending motions to proceed as paupers (Docs. 2 & 3) shall be addressed in a separate order.
Plaintiffs’ pending motion to certify this case as a class (Doc. 4) is DENIED as MOOT.
If either 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. CIV. 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.
See FED. R. CIV. P. 24(a)(1)(C). If either 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. CIV. P. 3(e);
28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008). Moreover,
if the appeal is found to be non-meritorious, the Plaintiff may 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. CIV. P. 4(a)(4). A Rule 59(e) motion must be filed no more than 28
days after the entry of the judgment, and this deadline cannot be extended. Robinson v. Sweeny,
— F.3d —, 2015 WL 4477987, at *1-2 (7th Cir. July 23, 2015).
The Clerk’s Office is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: July 31, 2015
s/ MICHAEL J. REAGAN

Chief Judge Michael J. Reagan
United States District Court

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