Polk v. Watson et al

Filing 6

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 J. Phil Gilbert on 11/21/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOE S. POLK, #463201,
Plaintiff,
vs.
RICHARD WATSON, and
ST. CLAIR COUNTY JAIL,
Defendants.

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Case No. 16-cv-01135-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
On October 14, 2016, Plaintiff Joe Polk filed a complaint (Doc. 1) pursuant to 42 U.S.C.
§ 1983 against Richard Watson and the St. Clair County Jail, where he was allegedly denied
adequate medical care. The complaint did not survive threshold review under 28 U.S.C. § 1915;
it was dismissed by text order for failure to state a claim upon which relief may be granted on
October 17, 2016. The dismissal was without prejudice to Plaintiff filing a First Amended
Complaint on or before November 14, 2016. That deadline has now passed. Plaintiff has not filed
a First 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).

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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
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: November 21, 2016
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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