Flores v. Unknown Party

Filing 7

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 12/8/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHAWN J. FLORES,
Plaintiff,
vs.

Case No. 17-cv-1071-NJR

UNKNOWN PARTY,
Defendant.

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Shawn J. Flores, an inmate at Lawrence Correctional Center, commenced this
pro se action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. 1 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, as well as for failure to comply with
Rule 8 of the Federal Rules of Civil Procedure, on November 2, 2017. (Doc. 6). 2 The dismissal
was without prejudice to Plaintiff filing a First Amended Complaint on or before November 30,
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.

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In Augusta et al., v. Employees of Vandalia Correctional Center et al., Case No. 17-cv-1071-SMY (S.D. Ill. July
26, 2017) (“Original Action”), Plaintiffs Shawn J. Flores and Quennel Augusta, inmates incarcerated at Vandalia
Correctional Center (“Vandalia”), brought suit pursuant to 42 U.S.C. § 1983 for deprivations of their constitutional
rights that allegedly occurred at Vandalia. On September 1, 2017, the presiding Judge in the Original Action entered
an Order pursuant to Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004). (Original Action, Doc. 5). Consistent with
the Boribourne Order and Plaintiffs’ responses (or failure to respond), Plaintiff Flores’ claims were severed into a
new action, forming the basis for this action, Case No. 17-cv-1071-NJR. (Original Action, Doc. 14).
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More specifically, the Court found that the Complaint (1) failed to comply with Rule 8 because it did not provide
defendants with fair notice of what Plaintiff’s claims are and the grounds upon which his claims rest, and (2) failed
to state a claim upon which relief can be granted.

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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.
DATED: 12/8/2017

s/ Nancy J. Rosenstengel
United States District Court
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