Wiley v. Dennison et al

Filing 8

ORDER DISMISSING CASE with prejudice for failure to comply with an order of this Court. 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 Nancy J. Rosenstengel on 9/26/2017. (tjk)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS CHEVIN DANTE WILEY, #M24132, Plaintiff, vs. JEFFERY DENNISON, LARRY L. HICKS, DARTANYEN L. CRIM, and DANIEL C. JEFFORDS, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 17−cv–658−NJR MEMORANDUM AND ORDER ROSENSTENGEL, District Judge: Plaintiff Chevin Wiley commenced this action pursuant to 42 U.S.C. § 1983 on June 26, 2017. (Doc. 1). He filed an Amended Complaint on July 13, 2017. (Doc. 5). The Amended Complaint did not survive threshold review under 28 U.S.C. § 1915, and it was dismissed for failure to state a claim upon which relief may be granted on August 22, 2017. (Doc. 7). The dismissal was without prejudice to Plaintiff filing a Second Amended Complaint on or before September 19, 2017. 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. 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). 1 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: September 26, 2017 s/ NANCY J. ROSENSTENGEL NANCY J. ROSENSTENGEL United States District Judge 2

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