Barnes v. IDOC et al

Filing 34

ORDER granting 33 Motion to Alter Judgment. See Order for details. Signed by Judge David R. Herndon on 4/24/17. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DIAMOND BARNES,
Petitioner,
v.

No. 16-798-DRH

JACQUELINE LASHBROOK1,
Respondent.

MEMORANDUM and ORDER

HERNDON, District Judge:
Pending before the Court is respondent’s motion to amend judgment (Doc.
33).

Respondent moves the Court to amend both the April 12, 2017

Memorandum and Order and Judgment to reflect that the dismissal should be with

prejudice and not without prejudice as the Court found that the petition was
untimely. The Court agrees with respondent and grants the motion. As the law is
clear on this, the Court finds that a response from petitioner is not necessary.
“The dismissal of a suit as untimely is a dismissal on the merits, and so should
ordinarily be made with prejudice, barring relitigation.” Pavlovsky v. Vannatta,
431 F.3d 1063 (7th Cir. 2005) (citing Kratville v. Runyon, 90 F.3d 195, 198 (7th
Cir.1996); Lebron-Rios

v.

U.S.

Marshal

Service, 341

F.3d

7,

14

(1st

Cir.2003); Kale v. Combined Ins. Co. of America, 924 F.2d 1161, 1164 (1st
Cir.1991)). Thus, the Court AMENDS both the April 12, 2017 Memorandum and

1 Lashbrook is the warden of Menard Correctional Center, where Barnes is incarcerated and is the
proper respondent. See. Fed.R.Civ.P. 25(d).

Order and Judgment (Docs. 29 & 30) to reflect that the dismissal in this case is
with prejudice. The Court DISMISSES with prejudice this matter as untimely
and declines to issue a certificate of appealablity. Further, the Court DIRECTS
the Clerk of the Court to enter an amended judgment reflecting the same.
IT IS SO ORDERED.
Signed this 24th day of April, 2017.

Digitally signed by
Judge David R.
Herndon
Date: 2017.04.24
12:48:15 -05'00'
United States District Judge