Jordan v. Bailey et al

Filing 11

ORDER DISMISSING CASE with prejudice, based on Plaintiff's failure to comply with this Court's Order (Doc. 9) dated November 14, 2016. 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 12/19/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DENZEL JORDAN,
# M-55351,
Plaintiff,
vs.
SUZANN BAILEY,
JOHN BALDWIN,
JACQUELINE LASHBROOK,
BETSY SPILLER,
and LARUE LOVE,
Defendants.

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Case No. 16-cv-01126-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Proceeding pro se, Plaintiff Denzel Jordan filed the instant civil rights action pursuant to
42 U.S.C. § 1983 on October 12, 2016. (Doc. 1). In the Complaint, he challenged the decision
of officials in the Illinois Department of Corrections (“IDOC”) to serve inmates a soy-based diet
while denying them medical care for adverse side effects of the diet. (Doc. 1, p. 5). He brought
claims against these officials under the Eighth Amendment. Id. Plaintiff requested monetary
damages against them. Id. at 6.
The Complaint did not survive preliminary review under 28 U.S.C. § 1915A.
On November 14, 2016, the Court dismissed two Eighth Amendment claims (Counts 1 and 2)
and a conspiracy claim (Count 3) against the defendants. (Doc. 9). However, Counts 1 and 2
were dismissed without prejudice, and Plaintiff was granted leave to file an amended complaint
on or before December 12, 2016, if he wished to re-plead these claims. Id. Plaintiff was warned
that failure to file an amended complaint by the deadline or consistent with the Court’s Order

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(Doc. 9) would result in dismissal of the action with prejudice. Id. (citing 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. Id. (citing 28 U.S.C. §
1915(g)).
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. 9) dated November 14, 2016. 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)

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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 19, 2016
s/ MICHAEL J. REAGAN
Chief Judge
United States District Judge

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