Malone v. Wexford Health Care Solutions, Inc. et al

Filing 6

ORDER DISMISSING CASE with prejudice, based on Plaintiff's failure to comply with this Court's Order (Doc. 5) dated October 11, 2017. Signed by Chief Judge Michael J. Reagan on 11/16/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM A. MALONE, #B52858,
Plaintiff,
vs.
WEXFORD HEALTH CARE
SOLUTIONS, INC.,
IDOC,
WARDEN,
ASSISTANT WARDENS 1 AND 2,
MAJOR MALCOME,
MAJOR CLELAND,
MR. BALDWIN,
SHERRY BENTON,
ARB CHAIRPERSON,
PINCKNEYVILLE CORRECTIONAL
CENTER,
CHRISTINE BROWN,
MRS. BUTLER,
MR. SMITH,
MS. HILL,
MS. MASON,
MS. STAYCIE,
MS. RETOHTIC,
MR. TAYLOR, and
JANE AND JOHN DOES,
Defendants.

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Case No. 17-cv-01062-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Proceeding pro se, Plaintiff William Malone filed a Complaint pursuant to 42 U.S.C.
§ 1983 in this District on October 2, 2010. (Doc. 1). The Complaint was obviously incomplete.
It consisted of pages numbered “9 of,” “10 of,” “10 of,” “1 of 1,” and “17 of 17” and made little
sense. Id. The Court entered an Order dismissing the original Complaint on October 11, 2017.
(Doc. 5).
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Plaintiff was ordered to confirm his intent to pursue this action in writing no later than
November 8, 2017. (Doc. 5). The Court also ordered him to submit a First Amended Complaint
by the same deadline, if he wished to proceed with his claims. Id. Plaintiff was warned that
failure to respond by the deadline would result in dismissal of the action and the assessment of
the full filing fee. Id. (citing FED. R. CIV. P. 41(b)). See also Ladien v. Astrachan, 128 F.3d
1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994).
Despite these warnings, Plaintiff missed the deadline for filing the First Amended
Complaint. A week has passed since the deadline expired. Plaintiff has not requested an
extension or filed a First Amended Complaint. In fact, he has not communicated with the Court
at all since filing his Complaint on October 2, 2017. The Court will not allow this matter to
linger indefinitely.
This action shall be dismissed with prejudice based on Plaintiff’s failure to comply with a
court order (Doc. 5) and for failure to prosecute his claims. See FED. R. CIV. P. 41(b). The
dismissal shall not count as one of Plaintiff’s three allotted “strikes” within the meaning of
28 U.S.C. § 1915(g). However, because Plaintiff has “struck out” 1 and failed to demonstrate that
he faces imminent danger of serious physical injury, his request to proceed in forma pauperis in
this action shall be denied.

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Court documents are public records, and the Court can take judicial notice of them. See Henson v. CSC
Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994). Review of documents filed in the electronic docket of
this Court and on the Public Access to Court Electronic Records (“PACER”) website (www.pacer.gov),
discloses that Plaintiff has already had at least ten other cases dismissed as frivolous or for failure to state
a claim upon which relief can be granted. See Malone v. Ardis, No. 13-cv-1543 (C.D. Ill. Dec. 3, 2013);
Malone v. City of Peoria, No. 13-cv-1559 (C.D. Ill. Feb. 20, 2014); Malone v. Hill, No. 16-cv-973 (S.D.
Ill. Oct. 26, 2016); Malone v. Fritts, No. 16-cv-200 (S.D. Ill. Nov. 7, 2016); Malone v. Unknown Party,
No. 16-cv-974 (S.D. Ill. Nov. 8, 2016); Malone v. Duvall, No. 16-cv-977 (S.D. Ill. Nov. 29, 2016);
Malone v. IDOC, No. 16-cv-978 (S.D. Ill. Dec. 8, 2016); Malone v. Shah, No. 16-cv-972 (S.D. Ill. Dec.
30, 2016); Malone v. Orange Crush, No. 16-cv-975 (S.D. Ill. Dec. 30, 2016); and Malone v. Groves, No.
16-cv-979 (S.D. Ill. Jan. 10, 2017).

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Disposition
IT IS HEREBY ORDERED that this action is DISMISSED with prejudice, based on
Plaintiff’s failure to comply with this Court’s Order (Doc. 5) dated October 11, 2017. 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 does not count as one of his 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.
Because he previously “struck out” and has not demonstrated that he faces imminent danger of
serious physical injury, Plaintiff’s Motion for Leave to Proceed in forma pauperis (Doc. 2) is
DENIED. Plaintiff remains obligated to pay the full $400.00 filing fee for this action, regardless
of this dismissal. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.
1998).
IT IS FURTHER ORDERED that Plaintiff’s pending Motion for Recruitment of
Counsel (Doc. 3) is DENIED as MOOT.
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, 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

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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.
IT IS SO ORDERED.
DATED: November 16, 2017
s/ MICHAEL J. REAGAN
Chief Judge
United States District Judge

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