Holliday v. Kramer et al

Filing 9

ORDER DISMISSING CASE with prejudice for failure to comply with an order of this Court and for failure to prosecute this action. Further, because the original Complaint was dismissed for failure to state a claim upon which relief may be granted, 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 Nancy J. Rosenstengel on 6/23/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SAMMY HOLLIDAY,
Plaintiff,
vs.
SGT. KRAMER, ROBERT DEWALL,
EVAN BAILEY, ROBERT ROSS,
COLLEEN MOORE,
and UNKNOWN PARTY,
Defendants.

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Case No. 15-cv-01402-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court for case management. The claims at issue in this action
were originally brought by Plaintiff and eight other detainees at the Alton City Jail (“Jail”).
Collier v. Kramer, Case No. 15-cv-674-SMY (S.D. Ill.). On July 10, 2015, the Court entered an
order (Doc. 3 in this action) in which each of the original Plaintiffs was given an opportunity to
withdraw from the suit or pursue his claims individually. The July 10 order also informed each
Plaintiff of his obligation to keep the Clerk of Court and each opposing party informed of any
changes in his address within seven days of any such change (Doc. 3, p. 7). Plaintiff chose to
pursue his claims in group litigation.
Nevertheless, in an Order dated December 22, 2015, the Court concluded that joinder of
the parties and their claims was not appropriate. (Doc. 1 in this action) (citing FED. R. CIV. P.
20(a)-(b), 21; Chavez v. Illinois State Police, 251 F.3d 612, 632 (7th Cir. 2001)). Each Plaintiff
was therefore required to pursue his claims in a separate action. (Id.). Further, because the
original complaint failed to state any claim upon which relief could be granted, the Court ordered

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each Plaintiff to file a “First Amended Complaint” in his newly-opened case no later than
January 25, 2016. (Doc. 1, p. 15). The Court warned each plaintiff that his case would be
dismissed with prejudice and a “strike,” if he “fail[ed] to file his First Amended Complaint
within the allotted time or consistent with the instructions set forth in th[e] Order.” (Id.)
(citing FED. R. CIV. P. 41(b); Ladien Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v.
Kamminga, 34 F.3d 466 (7th Cir. 1994)).
Plaintiff Sammy Holliday was granted leave to file his First Amended Complaint under
this case number. The amended pleading was due on or before January 25, 2016. The deadline
has passed. Plaintiff has not filed his First Amended Complaint. He has not requested an
extension of the deadline for doing so. Further, mail sent to Plaintiff at the address he provided
has been returned as undeliverable. (Doc. 7).
As a result, this case is DISMISSED with prejudice for failure to comply with an order
of this Court and for failure to prosecute this action. See 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) (dismissal for failure to
prosecute is presumptively with prejudice). Further, because the original Complaint was
dismissed for failure to state a claim upon which relief may be granted, this dismissal shall count
as one of Plaintiff’s three allotted “strikes” within the meaning 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 $350.00 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

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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, 133 F.3d at 467. 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) 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.
The Clerk’s Office is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: June 23, 2016
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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