Smith et al v. Bond County Jail et al

Filing 36

ORDER DISMISSING CASE with prejudice for failure to comply with an order of this Court and failure to prosecute. 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 4/21/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JEREMY K. SMITH,
Plaintiff,
vs.
JEFF BROWN,
Defendant.

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Case No. 17-cv-006-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
On January 6, 2017, Plaintiff Jeremy Smith filed a Complaint (Doc. 1), along with 7
other detainees at Bond County Jail, pursuant to 42 U.S.C. § 1983. The other plaintiffs to this
action have since been dismissed. (Doc. 17). The Complaint did not survive threshold review
under 28 U.S.C. § 1915A and was dismissed for failure to state a claim upon which relief may be
granted. (Doc. 17, p. 11). The dismissal was without prejudice to Plaintiff filing a First
Amended Complaint on or before April 14, 2017. Id. 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 and failure to prosecute. 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 1 remains due and payable. See 28 U.S.C.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (Doc. 2) will be addressed in
a separate Order of this Court.
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: April 21, 2017
s/ J. PHIL GILBERT
J. PHIL GILBERT
United States District Judge

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Pursuant to 28 U.S.C. § 1914, effective May 1, 2013, an additional $50.00 administrative fee is also to be assessed
in all civil actions, unless pauper status has been granted.

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