Farr v. Caldwell et al

Filing 10

ORDER DISMISSING CASE with prejudice for failure to state a claim upon which relief may be granted and for failure to comply with an order of this Court. 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 J. Phil Gilbert on 6/24/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEARICK FARR, #K-69866,
Plaintiff,
vs.
DR. CALDWELL and WEXFORD,
Defendants.

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Case No. 16-cv-00392-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
On April 8, 2016, Plaintiff Dearick Farr filed a Complaint (Doc. 1) pursuant to 42 U.S.C.
§ 1983 against Doctor Caldwell (prison physician) and Wexford (prison healthcare provider) for
discontinuing his pain medication on September 15, 2015 (Doc. 1, p. 5). The Complaint did not
survive threshold review under 28 U.S.C. § 1915A because it failed to state a claim upon which
relief may be granted against the defendants. Accordingly, the Court dismissed the Complaint
on May 13, 2016 (Doc. 6). However, the dismissal was without prejudice to Plaintiff filing a
First Amended Complaint on or before June 17, 2016 (Doc. 9, p. 5). The deadline has now
passed. Plaintiff has not filed a First Amended Complaint. He has also failed to request an
extension of the deadline for doing so.
As a result, this case is DISMISSED with prejudice for failure to state a claim upon
which relief may be granted and for failure to comply with an 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 Plaintiff’s three
allotted “strikes” within the meaning of 28 U.S.C. § 1915(g).

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If Plaintiff wishes to appeal this Order, he may file a notice of appeal with this Court
within thirty days of the entry of judgment. FED. R. APP. 4(A)(4). 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, 72526 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockish,
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) 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 24, 2016
s/J. Phil Gilbert
United States District Judge

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