Malone v. Orange Crush

Filing 8

ORDER DISMISSING CASE with prejudice, based on Plaintiff's failure to comply with this Court's Order (Doc. 7). Further, 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 12/30/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM A MALONE,
#B-52858,
Plaintiff,
vs.

Case No. 16-cv-00975-NJR

ORANGE CRUSH,
Defendant.

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff William Malone is currently incarcerated at the Pinckneyville Correctional
Center in Pinckneyville, Illinois. (Doc. 2 at 1). Proceeding pro se, Plaintiff previously filed a
complaint under 42 U.S.C. § 1983, alleging that separate groups of officials violated his rights in
several disparate ways during his time at Pinckneyville. Id. at 13-14. Plaintiff’s original
complaint was severed into nine cases, including this case. (Doc. 1 at 15). This case concerns
whether Defendant “Orange Crush” violated Plaintiff’s rights when Plaintiff was attacked by
officials on March 24, 2014, and then forced to remain in his wheelchair until he urinated on
himself. Id. Plaintiff appears to seek money damages.
Plaintiff’s claim in the instant case did not survive preliminary review under 28 U.S.C. §
1915A, and this Court dismissed it without prejudice on November 17, 2016. (Doc. 7). Plaintiff
was granted leave to file a First Amended Complaint on or before December 15, 2016. Id.
Plaintiff was warned that failure to file a First Amended Complaint would result in dismissal of
the action with prejudice and the assessment of a strike. Id. at 6.

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The deadline for filing the amended complaint has now passed. Plaintiff did not file a
First Amended Complaint. He also did not request an extension of the deadline for doing so.
The Court will not allow this matter to linger indefinitely.
Accordingly, the action is hereby DISMISSED with prejudice, based on Plaintiff’s
failure to comply with this Court’s Order (Doc. 7). See FED. R. CIV. P. 41(b); Ladien v.
Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994).
Further, 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, regardless of subsequent developments in the case. Accordingly, 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 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, 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

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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.
IT IS SO ORDERED.
DATED: December 30, 2016
s/ NANCY J. ROSENSTENGEL
NANCY J. ROSENSTENGEL
United States District Judge

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