Henderson v. Lawrence Correctional Center et al

Filing 9

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

MARKEL HENDERSON,
Y18880,
Plaintiff,
vs.
JACK YEN,
Defendant.

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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

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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.
DATED: 12/4/2017

s/ Nancy J. Rosenstengel
United States District Court

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