Cotton v. Larson et al

Filing 10

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that this action is DISMISSED with prejudice, based on Plaintiffs failure to comply with this Courts Order dated March 13, 2017 (Doc. 9). See FED. R. CIV. P. 41(b); Ladien v. Astrachan, 128 F.3d 1051 (7th C ir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994). The dismissal counts as one of Plaintiffs three allotted strikes within the meaning of 28 U.S.C. § 1915(g). IT IS FURTHER ORDERED that Plaintiffs Motion for Leave to Proceed in forma pauperis (Doc. 3) remains pending and shall be addressed in a separate Order of this Court. Signed by Judge Staci M. Yandle on 4/17/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KORDALE COTTON,
# Y-13092,
Plaintiff,
vs.
DR. LARSON
and GANG GERST,
Defendants.

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Case No. 17-cv-00033-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
On January 12, 2017, Plaintiff Kordale Cotton filed this civil rights action pursuant to
42 U.S.C. § 1983 against officials at Big Muddy River Correctional Center who allegedly denied
him medical care for osteoid osteoma in his right finger and for sickle cell anemia. (Doc. 1).
The original Complaint did not survive screening under 28 U.S.C. § 1915A and was dismissed
without prejudice on February 6, 2017. (Doc. 7). Plaintiff was granted leave to file a First
Amended Complaint by March 6, 2017. Id.
Plaintiff filed a timely First Amended Complaint. (Doc. 8). On March 13, 2017, the
Court dismissed it at screening for failure to state a claim upon which relief may be granted and
for noncompliance with Rule 8(a)(3) of the Federal Rules of Civil Procedure. (Doc. 9, p. 3).
The dismissal was without prejudice, and Plaintiff was given one final opportunity to re-plead
his claims by filing a Second Amended Complaint on or before April 10, 2017. Id. Plaintiff was
explicitly warned that “the entire case will be dismissed with prejudice” if he “fail[s] to file his
Second Amended Complaint within the allotted time or consistent with the instructions set forth
in th[e] Order.” Id.
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Plaintiff missed the deadline for filing his Second Amended Complaint. A week has
passed since the deadline expired. The Court has received no communication from him, such as
a request for an extension of the deadline. The Court will not allow this matter to continue
lingering. Accordingly, this action shall be dismissed with prejudice based on Plaintiff’s failure
to comply with an Order of this Court (Doc. 9) and his failure to prosecute his claims. 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, the dismissal will count as one of Plaintiff’s three allotted
“strikes” within the meaning of 28 U.S.C. § 1915(g).
Disposition
IT IS HEREBY ORDERED that this action is DISMISSED with prejudice, based on
Plaintiff’s failure to comply with this Court’s Order dated March 13, 2017 (Doc. 9). 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). The dismissal counts as one of Plaintiff’s three allotted “strikes”
within the meaning of 28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to Proceed in forma
pauperis (Doc. 3) remains pending and shall be addressed in a separate Order of this Court.
However, 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 $400.00 1 remains due and payable, despite the dismissal of this action. See 28 U.S.C.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).

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Effective May 1, 2013, the filing fee for a civil case increased from $350.00 to $400.00, by the addition
of a new $50.00 administrative fee for filing a civil action, suit, or proceeding in a district court. See
Judicial Conference Schedule of Fees - District Court Miscellaneous Fee Schedule, 28 U.S.C. § 1914,
No. 14. A litigant who is granted IFP status, however, is exempt from paying the new $50.00 fee.

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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)
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: April 17, 2017
s/ Staci M. Yandle____________
District Judge
United States District Judge

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