Santiago v. USA

Filing 8

ORDER DISMISSING CASE with prejudice for failure to prosecute, and failure to comply with a Court order. Because the Court found that Plaintiff's complaint, absent the required affidavit and certificate of merit, failed to state a claim upon which relief may be granted, this dismissal shall count as one of Plaintiff's three allotted strikes under the provisions of 28 U.S.C. § 1915(g). Signed by Chief Judge Michael J. Reagan on 3/13/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH SANTIAGO, # 10325-089,
Plaintiff,
vs.
USA,
Defendant.

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Case No. 16-cv-1063-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
This matter is before the Court for case management. On January 27, 2017, the single
medical malpractice claim in this action, brought pursuant to the Federal Tort Claims Act, was
dismissed without prejudice. (Doc. 7). The Court dismissed Plaintiff’s claim under 28 U.S.C.
§ 1915A for failure to state a claim upon which relief may be granted, because he had failed to
submit the required affidavit and certificates of merit required by Illinois law. Plaintiff was
given 35 days to file these documents if he wished to further pursue his claim.
Plaintiff was warned that if he failed to submit the affidavit or certificates of merit, this
case would be dismissed with prejudice, and the dismissal could count as a “strike” under 28
U.S.C. § 1915(g).
Plaintiff’s March 3, 2017, deadline has come and gone, and Plaintiff has failed to respond
in any way. This action is therefore subject to dismissal for failure to prosecute, and failure to
comply with an order of the Court.
IT IS HEREBY ORDERED that this action is DISMISSED with prejudice for failure
to prosecute, and failure to comply with a Court order. FED. R. CIV. P. 41(b); see generally

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James v. McDonald’s Corp., 417 F.3d 672, 681 (7th Cir. 2005); Ladien v. Astrachan, 128 F.3d
1051 (7th Cir. 1997); Lucien v. Breweur, 9 F.3d 26, 29 (7th Cir. 1993) (dismissal for failure to
prosecute is presumptively with prejudice).
The Clerk is DIRECTED to CLOSE THIS CASE and enter judgment accordingly.
Because the Court found that Plaintiff’s complaint, absent the required affidavit and
certificate of merit, failed to state a claim upon which relief may be granted, this dismissal shall
count as one of Plaintiff’s three allotted “strikes” under the provisions 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, as previously ordered in
Doc. 6. 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 dismissal, his notice of appeal must be filed with this
Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A motion for
leave to appeal in forma pauperis should set forth the issues Plaintiff plans to present on appeal.
See FED. R. APP. P. 24(a)(1)(C). 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. P. 3(e);
28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v.
Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 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

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cannot be extended.
IT IS SO ORDERED.
DATED: March 13, 2017

s/ MICHAEL J. REAGAN
Chief Judge
United States District Court

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