Banks v. Song et al

Filing 9

ORDER DISMISSING CASE without prejudice, for failure to comply with an Order of this Court. This dismissal shall NOT count as one of Plaintiff's three allotted strikes under 28 U.S.C. § 1915(g). The Clerk is DIRECTED to mail a copy of this Order to the Trust Fund Officer at the Northeast Ohio Correctional Center upon entry of this Order. Signed by Judge J. Phil Gilbert on 11/7/2017. (tjk)

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

FREDERICK BANKS, 05711-068,
Plaintiff,
vs.
SOO SONG, et al
Defendants.

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CIVIL NO. 17-cv-0768-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
On September 19, 2017, Petitioner was ordered to pay the filing fee of $400.00 for this
action no later than October 19, 2017 (Doc. 6). Plaintiff was clearly warned in that Order that
failure to pay the filing fee of $400.00 would result in dismissal of this case. The date to pay the
filing fee has passed, and Plaintiff has failed to do so. As a result, this action is DISMISSED
without 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). This dismissal shall NOT count as one of Plaintiff’s three allotted “strikes”
under 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 $400 remains due and payable. See 28
U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).

Accordingly, the

agency having custody of the plaintiff is directed to remit the $400.00 filing fee from his prison
trust fund account if such funds are available. If he does not have $400.00 in his account, the
agency must send an initial payment of 20% of the current balance or the average balance during

the past six months, whichever amount is higher. Thereafter, the agency shall begin forwarding
monthly payments of 20% of the preceding month’s income credited to Plaintiff’s trust fund
account (including all deposits to the inmate account from any source) until the statutory fee of
$400.00 is paid in its entirety. The agency having custody of Plaintiff shall forward payments
from Plaintiff’s account to the Clerk of Court each time the Plaintiff’s account exceeds $10.00
until the $400.00 filing fee is paid.

Payments shall be mailed to: Clerk of the Court, United

States District Court for the Southern District of Illinois, P.O. Box 249, East St. Louis, Illinois
62202. The Clerk is DIRECTED to mail a copy of this Order to the Trust Fund Officer at the
Northeast Ohio Correctional Center upon entry of this Order.
The Clerk’s Office is DIRECTED to close this case.
IT IS SO ORDERED.
DATED: November 7, 2017
s/J. Phil Gilbert
United States District Judge

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