Brooks v. Marvin et al

Filing 7

ORDER DISMISSING CASE with prejudice for failure to comply with an order of this Court. Further, because the 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 Staci M. Yandle on 9/26/2017. (tjk)

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

COREY BROOKS, #M10971,
Plaintiff,
vs.
SGT. MARVIN,
and MRS. HOPE,
Defendants.

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Case No. 17−cv–681−SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Corey Brooks commenced this action pursuant to 42 U.S.C. § 1983 on June 30,
2017. (Doc. 1). The 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. 6). The dismissal was without prejudice to Plaintiff filing a First Amended Complaint on
or before September 19, 2017. That deadline has now passed. Plaintiff has not filed a First
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 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).
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.
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§ 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/ STACI M. YANDLE
United States District Judge

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