Hamilton v. Horn et al

Filing 14

ORDER DISMISSING CASE with prejudice for failure to comply with an order of this Court. Further, because the complaint failed to state a claim upon which relief may be granted, 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 6/2/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DANIEL ROBERT HAMILTON,
# B-26391,

Plaintiff,
vs.

RYAN BASTEN,
RICHARD PHARRELL,
KIMBERLY BUTLER,
JOHN BALDWIN,
BOARD MEMBERS OF ILLINOIS
DEPARTMENT OF CORRECTIONS,
and BRUCE RAUNER,
Defendants.

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Case No. 16-cv-1050-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Daniel Robert Hamilton, an inmate at Menard Correctional Center, filed his
original complaint on September 19, 2016. (Doc. 1). Although far from clear, the original
complaint attempted to bring claims pertaining to one or more allegedly false disciplinary
reports. Before the Court could screen Plaintiff’s original complaint, he filed a First Amended
Complaint (Doc. 8), which he was entitled to do without leave of court under Federal Rule of
Civil Procedure 15(a)(1)(A).
The First Amended Complaint did not survive threshold review under 28 U.S.C. § 1915;
it was dismissed for failure to state a claim upon which relief may be granted on December 19,
2016. (Doc. 10). The dismissal was without prejudice to Plaintiff filing a Second Amended
Complaint on or before January 12, 2017. On January 11, 2017, Plaintiff filed a Motion for

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Extension of Time. (Doc. 11). The Court granted the requested extension, allowing Plaintiff until
March 15, 2017 to file his Second Amended Complaint. When Plaintiff failed to comply with the
extended deadline, the Court sua sponte entered an order granting a second extension. (Doc. 13).
As explained in the Court’s order allowing for a second extension, the Court was concerned that
Plaintiff had mistakenly filed his Second Amended Complaint in the wrong action. 1 Because of
the possible mistake, the Court allowed Plaintiff one final opportunity to file a Second Amended
Complaint in this action. Plaintiff was directed to file the Second Amended Complaint on or
before May 16, 2017. The Court explicitly warned Plaintiff that failure to comply would result in
a with prejudice dismissal of the action and that the dismissal would count as one of Plaintiff’s
three allotted “strikes” within the meaning of 28 U.S.C. § 1915(g).
That deadline has now passed. Plaintiff has not filed a Second Amended Complaint. He
also has failed to request an extension of the deadline for doing so.
As a result, this case is DISMISSED with prejudice 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). Further, because the complaint failed
to state a claim upon which relief may be granted, 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, thus 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

1

On March 14, 2016, Plaintiff filed a Second Amended Complaint in another action presently pending in the
Southern District of Illinois—Hamilton v. Brookman, et al., No. 3:16-cv-1034-SMY.

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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 2, 2017
s/ NANCY J. ROSENSTENGEL
NANCY J. ROSENSTENGEL
United States District Judge

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