Miller v. Breeden 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 Staci M. Yandle on 11/7/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRIAN MILLER,

Plaintiff,
vs.
BREEDEN, et al.
Defendants.

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Case No. 16-cv-0627-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
On June 10, 2016, Plaintiff filed a Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983. In
the Complaint, Plaintiff sued Defendants for due process violations that allegedly occurred at
Shawnee Correctional Center. (Doc. 1). However, Plaintiff neglected to associate specific
claims with specific defendants and the Complaint was dismissed on that grounds. (Doc. 9).
The Court gave Plaintiff instructions on how to amend his Complaint and directed him to do so
on or before October 3, 2016. (Doc. 9). The Court dismissed the Complaint on August 29,
2016. (Doc. 9).
The deadline for Plaintiff to amend his Complaint has now passed and Plaintiff has not
filed an Amended Complaint. He has also failed to request an extension of the deadline for
doing so. The Court therefore finds that Plaintiff is not in compliance with its August 29, 2016
Order directing him to file an Amended Complaint.
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.

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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).
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). If the appeal is found to be non-meritorious, Plaintiff may
also incur another “strike.” A timely motion filed pursuant to Federal Rule of Civil Procedure
59(e) may toll the 30-day appeal deadline. 1 FED. R. APP. 4(a)(4).
The Clerk’s Office is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: November 7, 2016
s/ STACI M. YANDLE
United States District Judge

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A Rule 59(e) motion to alter or amend a judgment must be filed no later than 28 days after the entry of
the judgment. FED. R. CIV. P. 59(e).

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