Turner v. Spiller et al

Filing 25

ORDER granting 19 Motion to Dismiss: This action is DISMISSED with prejudice pursuant to Federal Rule of Civil Procedure 41(b). This dismissal does not count as one of Plaintiffs three allotted strikes within the meaning of Sec. 1915(g).The Clerks Office is DIRECTED to close this case and enter judgment accordingly. Signed by Judge Staci M. Yandle on 6/23/2020. (dsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TERRY TURNER,

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Plaintiff,
vs.
WARDEN SPILLER, JOSEPH
YURKOVICH, and ORANGE CRUSH
TACTICAL TEAM,
Defendants.

Case No. 16−cv–131−SMY

ORDER DISMISSING CASE
YANDLE, District Judge:
On March 11, 2016, this case was consolidated with Ross v. Gossett, Case No. 15-cv-309SMY-MAB. In May 2017, the Illinois Department of Corrections informed the Court that Plaintiff
had been released on mandatory supervised release and was no longer housed at Western Illinois
Correction Center (Doc. 10). Accordingly, the Court ordered Plaintiff to file a notice of change of
address within 14 days. Id. Plaintiff failed to respond.
This matter was severed from the Ross case (Doc. 13) on March 25, 2019, and Defendants
filed their Answer to Plaintiff’s Complaint on August 21, 2019 (Doc. 16). On October 9, 2019,
the Court, once again, ordered Plaintiff to update his address (Doc. 18). Plaintiff was warned that
his case would be dismissed with prejudice if he did not update his address by the deadline (Doc.
18). On November 4, 2019, after Plaintiff failed to update his address, Defendants filed a Motion
to Dismiss Pursuant to Federal Rule of Civil Procedure 41(b) (Doc. 19). To date, Plaintiff has not
complied with the Court’s directives to update his address nor has he responded to Defendants’
Motion to Dismiss.

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The Court will not allow this matter to linger indefinitely. Accordingly, this action shall
be dismissed with prejudice for failure to comply with two court orders and for failure to prosecute.
See FED. R. CIV. P. 41(b). The dismissal does not count as one of Plaintiff’s three allotted “strikes”
within the meaning of 28 U.S.C. § 1915(g).
Disposition
IT IS HEREBY ORDERED that this action is DISMISSED with prejudice pursuant to
Federal Rule of Civil Procedure 41(b). This dismissal does not count as one of Plaintiff’s three
allotted “strikes” within the meaning of § 1915(g).
Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed. Therefore, 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 Order, he must file a notice of appeal with this Court within
thirty days of the entry of judgment. FED. R. APP. 4(a)(1)(A). 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. 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. He must
list each of the issues he intends to appeal in the notice of appeal. See FED. R. APP. P. 24(a)(1)(C).
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 judgment, and this 28-day deadline cannot be extended.
The Clerk’s Office is DIRECTED to close this case and enter judgment accordingly.

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IT IS SO ORDERED.
DATED: June 23, 2020

s/ STACI M. YANDLE
U.S. District Judge

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