Palmer v. Baldwin et al

Filing 14

ORDER DISMISSING CASE with prejudice for failure to comply with an order of this Court and failure to prosecute. Because the Complaint (Doc. 1) was originally dismissed for failure 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 Chief Judge Michael J. Reagan on 8/22/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

BILLY D. PALMER, #B74805,
Plaintiff,
vs.
JOHN BALDWIN, and
MATTHEW SWALLS,
Defendants.

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Case No. 17−cv–0585−MJR

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
Plaintiff Billy Palmer filed this action on June 2, 2017 pursuant to 42 U.S.C. § 1983.
(Doc. 1).

On July 17, 2017, this Court dismissed Plaintiff’s Complaint for failure to state a

claim upon which relief may be granted. (Doc. 7, p. 7). Plaintiff filed a Motion to Dismiss Case
(Doc. 8) on July 21, 2017 in an attempt to avoid the filing fee, but the motion was later deemed
withdrawn when Plaintiff notified the Court that he would rather continue the action if he would
be unable to avoid paying the fee. (See Docs. 12, 13). On August 2, 2017 and August 10, 2017,
Plaintiff was reminded of his obligation to submit a properly signed amended complaint no later
than August 14, 2017, as he was originally ordered to on July 17, 2017, if he wished to further
pursue his claims. (See Docs. 7, 11, 13). Plaintiff was also warned on each occasion that if he
failed to timely submit an amended complaint, his case would be dismissed with prejudice and a
strike pursuant to 28 U.S.C. § 1915(g) would be assessed. Id.
Plaintiff’s deadline has now passed, and he has not submitted an amended complaint. He
also has failed to request an extension of the deadline for doing so.
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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). Because the
Complaint (Doc. 1) was originally dismissed for failure 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). (See Doc. 7, p. 7).
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: August 22, 2017
s/ MICHAEL J. REAGAN
Chief Judge
United States District Court
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