Henderson v. Lawrence Correctional Center et al
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 Nancy J. Rosenstengel on 12/4/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Case No. 17−cv–01048−NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Markel Henderson, an inmate at Lawrence Correctional Center, commenced this
pro se action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff
alleges Defendant violated his constitutional rights by prescribing Risperdal, which allegedly
caused him to develop female breast tissue – a condition known as gynecomastia. The Complaint
did not survive threshold review under 28 U.S.C. § 1915, and was dismissed for failure to state a
claim upon which relief may be granted on October 25, 2017. (Doc. 8). The dismissal was
without prejudice to Plaintiff filing a First Amended Complaint on or before November 21, 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. §
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 incur an additional “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. 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.
s/ Nancy J. Rosenstengel
United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?