Firkins v. McLaurin et al

Filing 11

ORDER DISMISSING CASE with prejudice for failure to comply with an order of this Court and failure to prosecute. Further, because the Amended 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 5/9/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JACK L. FIRKINS, #315562,
Plaintiff,
vs.
PHILLIP MCLAURIN,
ST. CLAIR COUNTY JAIL, and
CHRIS HEARNIS,
Defendants.

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Case No. 17−cv–195−JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
On February 23, 2017, Plaintiff Jack Firkins filed a Complaint (Doc. 1) pursuant to
42 U.S.C. § 1983.

Before a threshold review was conducted, Plaintiff filed an Amended

Complaint (Doc. 9) on March 23, 2017. The Amended Complaint did not survive threshold
review under 28 U.S.C. § 1915A and was dismissed on April 3, 2017 for failure to state a claim
upon which relief may be granted. (Doc. 10, p. 15). The dismissal was without prejudice to
Plaintiff filing a Second Amended Complaint on or before May 2, 2017. Id. That deadline has
now passed. Plaintiff has not filed a Second 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 Amended 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: May 9, 2017
s/ J. PHIL GILBERT
J. PHIL GILBERT
United States District Judge

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