James v. Butler et al

Filing 10

ORDER DISMISSING CASE with prejudice for failure to comply with an order of this Court. This dismissal shall not count as one of Plaintiff's three allotted strikes under the provisions of 28 U.S.C. § 1915(g). Signed by Judge Staci M. Yandle on 1/4/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NED JAMES, # K-91930

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Plaintiff,
vs.
WARDEN KIMBERLY BUTLER,
DR. TROST, DR. FUENTEZ,
MEDTECH MS. STEPHANIE,
NURSE IANNA, NURSE HORNTON,
LT. BROCKMAN, MS. GAIL HALL,
MEDTECH AMY LANG,
NURSE RAY BURN, C/O MS. BAKER,
JANE DOE (Nurse Stephanie)
and C/O JOHN DOE,
Defendants.

Case No. 15-cv-936-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
This matter is before the Court for case management, and to consider two motions filed
by Plaintiff: a November 3, 2015, motion for status (Doc. 8), and a motion to voluntarily dismiss
the case (Doc. 9), filed on November 19, 2015.
Plaintiff filed this action on August 24, 2015, complaining about his conditions of
confinement at Menard Correctional Center (Doc. 1). On September 18, 2015, this Court entered
an order denying Plaintiff’s motion for leave to proceed in forma pauperis (“IFP”) and directing
him to pay the $400.00 filing fee in full no later than October 2, 2015 if he wished to proceed
with this case (Doc. 7). Plaintiff was warned that if he failed to pay the filing fee, this case
would be dismissed with prejudice for failure to prosecute.
Plaintiff’s October 2 payment deadline is long past, and he has failed to make any

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payment toward his fee. This action was therefore subject to dismissal for failure to prosecute as
and for failure to comply with an order of the Court, before Plaintiff filed either of the pending
motions.
Plaintiff’s motion for status (Doc. 8) is GRANTED, insofar as the status is reflected
herein.
Plaintiff’s motion to dismiss this case (Doc. 9) is also GRANTED. However, because
Plaintiff failed to timely respond to or comply with this Court’s previous order to pay the filing
fee, the dismissal of this civil rights claim shall be with prejudice.
IT IS HEREBY ORDERED that this action is DISMISSED with prejudice for failure
to comply with an order of this Court. FED. R. CIV. P. 41(b); see generally James v. McDonald’s
Corp., 417 F.3d 672, 681 (7th Cir. 2005); Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997);
Lucien v. Breweur, 9 F.3d 26, 29 (7th Cir. 1993).
The Clerk is DIRECTED to CLOSE THIS CASE and enter judgment accordingly.
This dismissal shall not count as one of Plaintiff’s three allotted “strikes” under the
provisions of 28 U.S.C. § 1915(g).
Plaintiff’s obligation to pay the filing fee for this action was incurred at the time the
action was filed, thus the filing fee of $400.00 remains due and payable.

See 28 U.S.C.

§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). To that end, the agency
having custody of the Plaintiff is DIRECTED to remit the $400.00 filing fee from his prison
trust fund account if such funds are available. If he does not have $400.00 in his account, the
agency must send an initial payment of 20% of the current balance or the average balance during
the past six months, whichever amount is higher. Thereafter, Plaintiff shall make monthly
payments of 20% of the preceding month's income credited to Plaintiff's prison trust fund

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account until the $400.00 filing fee is paid in full. The agency having custody of Plaintiff shall
forward these payments from the Plaintiff’s trust fund account to the Clerk of this Court each
time the Plaintiff’s account exceeds $10.00, until the $400.00 fee is paid. Payments shall be
mailed to: Clerk of the Court, United States District Court for the Southern District of Illinois,
P.O. Box 249, East St. Louis, Illinois 62202. The Clerk is DIRECTED to mail a copy of this
order to the Trust Fund Officer at the Menard Correctional Center upon entry of this Order.
If 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. 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.
See FED. R. APP. P. 24(a)(1)(C). 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. 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 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 the judgment, and this 28-day deadline cannot be
extended.
IT IS SO ORDERED.
DATED: January 4, 2016

s/ STACI M. YANDLE
United States District Judge

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