Wade v. Shah et al

Filing 19

ORDER DISMISSING CASE without prejudice, and this case is CLOSED. Signed by Judge Nancy J. Rosenstengel on 3/28/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JEREMY WADE, #M-17657,
Plaintiff,
vs.
VIPIN SHAH,
WEXFORD MEDICAL SOURCES,
SUZANN BAILEY, and
ALFONSO DAVID,
Defendants.

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Case No. 15-cv-01353-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
On December 10, 2015, Plaintiff filed a pro se civil rights complaint in this Court.
(Doc. 1). On December 21, 2015, the Court entered a text order (Doc. 7) notifying Plaintiff that
the right sides of pages 5-10 of his complaint were inadvertently cut off. The Court ordered
Plaintiff to re-submit the complaint no later than January 7, 2016.
Plaintiff failed to submit a complaint by the deadline. On January 22, 2016, the Court
issued an order (Doc. 9) warning Plaintiff that his case would be dismissed for failure to
prosecute and/or for failure to comply with a court order under Federal Rule of Civil
Procedure 41(b) if he did not re-submit the complaint by February 1, 2016.
On January 27, 2016, Plaintiff submitted a copy of the original complaint (see Doc. 10),
but this time pages 5-10, which included Counts 1 and 2, were entirely omitted. In addition,
Plaintiff filed a motion to sever and settle certain claims (Doc. 14). Unclear whether Plaintiff
intended to omit Counts 1 and 2, the Court ordered Plaintiff to resubmit the complaint, if the
omission was unintended, by February 16, 2016. (See Doc. 15).
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Instead of re-submitting his complaint, Plaintiff filed a motion to withdraw the motion to
sever (Doc. 16) and a motion to amend the complaint (Doc. 17). In the motion to withdraw the
motion to sever (Doc. 16), Plaintiff stated that the motion to sever was “accidentally” included in
his filings because at the time Plaintiff was “inadvertently” mirroring the filings in a case filed by
his cellmate. (Doc. 16). In accordance with Plaintiff’s request, the Court withdrew Plaintiff’s
motion to sever (Doc. 14) and granted Plaintiff leave to file an amended complaint. (See Doc.
18). In that Order (Doc. 18), Plaintiff was advised that he had only until March 22, 2016, to file
an amended complaint, and he was clearly warned that failure to file an amended complaint by
that deadline would result in dismissal of the case in its entirety. The deadline has since passed,
and Plaintiff has not filed an amended complaint.
As a result, the present case is DISMISSED without prejudice, and this case is
CLOSED. Because Plaintiff’s obligation to pay the filing fee for this action was incurred at the
time the action was filed, the filing fee of $350 remains due and payable. See 28 U.S.C.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
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 another “strike.”
A proper and timely motion filed pursuant to Federal Rule of Civil Procedure 59(e) tolls the 30-

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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.
The Clerk shall CLOSE THIS CASE and enter judgment accordingly.
IT IS SO ORDERED.
DATED: March 28, 2016

__________________________
NANCY J. ROSENSTENGEL
United States District Judge

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