Malone v. IDOC et al

Filing 10

ORDER DISMISSING CASE with prejudice, based on Plaintiff's failure to comply with two Orders of this Court (see Docs. 7, 9). 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 Chief Judge Michael J. Reagan on 12/8/2016. (tjk)

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

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Case No. 16-cv-00978-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
This case was severed from another civil rights action that Plaintiff William Malone filed
pursuant to 42 U.S.C. § 1983 on February 23, 2016. See Malone v. Fritts, Case No. 16-cv00200-SMY (S.D. Ill.). The instant case addresses three claims (“Counts 10, 11, and 12”) that
Plaintiff asserted against one or more officials at Pinckneyville Correctional Center
(“Pinckneyville”) after he was allegedly denied access to the prison’s shower in 2014 (Count
10), threatened with disciplinary segregation in 2015 (Count 11), and issued a false disciplinary
ticket in 2015 (Count 12). In connection with these claims, Plaintiff requested compensatory and
punitive damages against the defendant(s).
Counts 10, 11, and 12 did not survive preliminary review under 28 U.S.C. § 1915A.
On October 17, 2016, the Court dismissed Count 11 with prejudice and Counts 10 and 12
without prejudice (see Doc. 7). Plaintiff was granted leave to file an amended complaint on or
before November 21, 2016, if he wished to re-plead his claims in Counts 10 and 12 against the
defendant(s) (id.). Plaintiff was warned that failure to file an amended complaint by the deadline
or consistent with the Court’s Order (Doc. 7) would result in dismissal of the action with

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prejudice. 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, he was advised that a “strike”
would be assessed. See 28 U.S.C. § 1915(g).
Plaintiff filed his First Amended Complaint (Doc. 8) on November 9, 2016.
The amended complaint was subject to dismissal for several reasons. For one thing, Plaintiff
filed the same amended complaint in two separate actions, and he could not pursue identical
claims in both. In addition, the amended complaint included no request for relief. Finally, it did
not comply with the instructions set forth in the Court’s Order (Doc. 7) dated October 17, 2016.
For these reasons, the Court dismissed the First Amended Complaint on November 17, 2016
(see Doc. 9). Plaintiff was given one final opportunity to file a Second Amended Complaint on
or before December 1, 2016 (id.).
That deadline has now passed. Plaintiff did not file a Second 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 two Orders of this Court (see Docs. 7, 9). 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; thus, the filing fee of
$350.00 remains due and payable for this severed case. See 28 U.S.C. § 1915(b)(1); Lucien v.
Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).

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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, 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
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 8, 2016
s/ MICHAEL J. REAGAN
Chief Judge
United States District Judge

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