Frayer v. Shawnee Correctional Center

Filing 10

ORDER DISMISSING CASE based on Plaintiff's failure to comply with this Court's Order to file an amended complaint on or before October 30, 2017. (Doc. 7). The dismissal counts as one of Plaintiff's three allotted strikes within the meaning of § 1915(g). Signed by Judge David R. Herndon on 11/6/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
AUSTIN FRAYER,
#Y19383,
Plaintiff,
vs.
SHAWNEE CORRECTIONAL
CENTER,
Defendant.

Case No.

–00881 DRH

MEMORANDUM AND ORDER
HERNDON
Proceeding pro se, Plaintiff Austin Frayer filed this civil rights action
pursuant to 42 U.S.C. § 1983 on August 21, 2017. (Doc. 1). Plaintiff claimed that
prison officials at Shawnee Correctional Center failed to protect him from an
attack by his cellmate on July 14, 2017.

(Doc. 1, pp. 5-7).

He sought

expungement of a disciplinary ticket that he was issued for fighting. (Doc. 1, p.
8). He also requested monetary relief against the defendant. Id.
The Complaint did not survive screening under 28 U.S.C. § 1915A, and it
was dismissed on October 3, 2017. (Doc. 7, p. 8). However, the dismissal was
without prejudice, and Plaintiff was granted leave to file a First Amended
Complaint on or before October 30, 2017.

(Doc. 7, pp. 8-9).

Plaintiff was

explicitly warned that the action would be dismissed with prejudice, if he failed to
file an amended complaint by the deadline.

Id. (citing FED. R. CIV. P. 41(b);

Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga,
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34 F.3d 466 (7th Cir. 1994)). Plaintiff was further warned that he would receive a
“strike” pursuant to 28 U.S.C. § 1915(g). (Doc. 7, p. 9).
Despite these warnings, Plaintiff missed the deadline for filing the First
Amended Complaint.

At least a week has passed since the deadline expired.

Plaintiff has not requested an extension. The Court will not allow this matter to
linger indefinitely.

Accordingly, this action shall be dismissed with prejudice

based on Plaintiff’s failure to comply with an Order of this Court (Doc. 7) and
failure to prosecute his claims. (Doc. 7, pp. 8-9). The dismissal will count as one
of Plaintiff’s three allotted “strikes” within the meaning of § 1915(g).
Disposition
IT IS HEREBY ORDERED that this action is DISMISSED

,

based on Plaintiff’s failure to comply with this Court’s Order to file an amended
complaint on or before October 30, 2017. (Doc. 7). See FED. R. CIV. P. 41(b);

Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga,
34 F.3d 466 (7th Cir. 1994).

The dismissal counts as one of Plaintiff’s three

allotted “strikes” within the meaning of § 1915(g).
IT IS ALSO ORDERED that Plaintiff’s obligation to pay the filing fee for
this action was incurred at the time the action was filed, regardless of subsequent
developments in the case. Accordingly, 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).

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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, 725-26 (7th Cir. 2008); Sloan

v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien, 133 F.3d at 467.
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 judgment, and this 28-day deadline cannot be extended.
The Clerk’s Office is DIRECTED to close this case and enter judgment
accordingly.

Digitally signed by
Judge David R.
Herndon
Date: 2017.11.06
13:12:32 -06'00'

IT IS SO ORDERED.

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