Disch v. True

Filing 4

MEMORANDUM AND ORDER DISMISSING CASE. Signed by Judge J. Phil Gilbert on 8/16/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL F. DISCH, #03398-424
Plaintiff,
vs.
WARDEN TRUE,
Defendant.

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Case No. 17-cv-718-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
On July 10, 2017, Plaintiff Michael Disch filed a Motion for Emergency Preliminary
Injunctive Relief (“Motion”) (Doc. 1) not associated with any previous action in this Court. This
Motion was denied on July 12, 2017. (Doc. 3). Because Plaintiff had not yet properly initiated a
civil rights action by filing a complaint, Plaintiff was ordered to file a complaint on or before
August 9, 2017 in order to initiate the action. Id. Plaintiff was also ordered to pay his filing fee
or file a motion for leave to proceed in forma pauperis by the same deadline. Id. Plaintiff was
warned that failure to complete either of those actions would result in dismissal of the case for
failure to comply with a court order and/or failure to prosecute the action. See FED. R. CIV. P.
41(a). That deadline has now passed. Plaintiff has not filed a complaint. Plaintiff has also not
paid his filing fee or filed a motion for leave to proceed in forma pauperis. He also has failed to
request an extension of the deadline for doing either.
As a result, this case is DISMISSED without prejudice, without leave to amend, for
failure to comply with an order of this Court and failure to prosecute. FED. R. CIV. P. 41(b); see

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generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d
466 (7th Cir. 1994).
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 $400.00 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 a “strike” pursuant to 28 U.S.C. § 1915(g). 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 16, 2017
__s/J. Phil Gilbert___________________
J. PHIL GILBERT
United States District Judge

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