Williams v. Garnett et al
MEMORANDUM AND ORDER DISMISSING CASE: IT IS HEREBY ORDERED that this action is DISMISSED with prejudice for failure to prosecute. Because the original Complaint (Doc. 1) failed to state a claim upon which relief may be granted, this dismissal shall count as one of Plaintiffs three allotted strikes under the provisions of 28 U.S.C. § 1915(g). Plaintiffs obligation to pay the filing fee for this action was incurred at the time the action was filed, thus the balance of his $350.00 filing fee remains due and payable. The Clerk is DIRECTED to CLOSE THIS CASE and enter judgment accordingly. Signed by Chief Judge Michael J. Reagan on 8/11/2017. (tkm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARCUS WILLIAMS, # K-66931,
JASON GARNETT, 1
Case No. 17-cv-501-MJR
MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
This matter is before the Court for case management. This action was filed on May 11,
2017. Plaintiff claims that Defendants denied him proper dental care. On June 28, 2017, this
Court entered an order dismissing the Complaint pursuant to 28 U.S.C. § 1915A for failure to
state a claim upon which relief may be granted (Doc. 6). Plaintiff was given until August 2,
2017, to file an amended complaint if he wished to further pursue his claims for deliberate
indifference to his medical needs and dental malpractice/negligence, and the Clerk mailed him a
blank complaint form for his use in preparing his amended pleading. He was also ordered to file
the required affidavit(s) pursuant to 735 Ill. Comp. Stat. §5/2-622 by the same deadline, if he
wished to revive his malpractice/negligence claim.
Plaintiff was warned that if he failed to submit an amended complaint, this case would be
dismissed with prejudice, and the dismissal would count as a “strike” under 28 U.S.C. § 1915(g).
Plaintiff’s August 2, 2017, deadline has come and gone, and Plaintiff has failed to respond in any
way. This action is therefore subject to dismissal for failure to prosecute.
Defendant Jason Garnett was dismissed from the action without prejudice in the Court’s threshold order
of June 28, 2017, along with the other Defendants named in the original Complaint. (Doc. 6).
IT IS HEREBY ORDERED that this action is DISMISSED with prejudice for failure
to prosecute. FED. R. CIV. P. 41(b); see generally James v. McDonald’s Corp., 417 F.3d 672,
681 (7th Cir. 2005); Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Lucien v. Breweur, 9
F.3d 26, 29 (7th Cir. 1993) (dismissal for failure to prosecute is presumptively with prejudice).
Because the original Complaint (Doc. 1) failed to state a claim upon which relief may be
granted, this dismissal shall count as one of Plaintiff’s three allotted “strikes” under the
provisions 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, thus the balance of his $350.00 filing fee remains due and payable. See 28
U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
The Clerk is DIRECTED to CLOSE THIS CASE and enter judgment accordingly.
If Plaintiff wishes to appeal this dismissal, his notice of appeal must be filed with this
Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A motion for
leave to appeal in forma pauperis should set forth the issues Plaintiff plans to present on appeal.
See FED. R. APP. P. 24(a)(1)(C). 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. P. 3(e);
28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v.
Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 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.
IT IS SO ORDERED.
DATED: August 11, 2017
s/Michael J. Reagan
United States District Court
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