Moore v. Scott, et al

Filing 24

ORDER DISMISSING CASE with prejudice for failure to comply with an order of this Court and failure to prosecute. Further, because the Amended 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 J. Phil Gilbert on 9/4/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTHONY T. MOORE, JR., #446508,
Plaintiff,
vs.
MATTHEW SCOTT et al.,
Defendants.

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Case No. 17−cv–1153−JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
On October 24, 2017, Plaintiff Anthony Moore, Jr. filed a Complaint (Doc. 1) pursuant to
42 U.S.C. § 1983. Soon thereafter, he filed an Amended Complaint (Doc. 10) superseding the
original Complaint. The Amended Complaint did not survive threshold review under 28 U.S.C.
§ 1915A and was dismissed on March 15, 2018 for failure to comply with Federal Rule of Civil
Procedure 8. (Doc. 16, p. 7). The dismissal was without prejudice to Plaintiff filing an amended
complaint on or before April 11, 2018. Id. That deadline passed without Plaintiff filing an
amended complaint, so this action was dismissed with prejudice and judgment was entered.
(Docs. 17-18). This case was then reopened on July 11, 2018 in response to a Motion for
Reconsideration (Doc. 19) filed by Plaintiff. (Doc. 20). Plaintiff was given until August 8, 2018
to file a Second Amended Complaint or face dismissal with prejudice once again. Id.
On August 14, 2018, Plaintiff filed a Motion for Reconsideration asking the court to
sever his previously dismissed Amended Complaint and suggesting that he could refile the
dismissed complaint. (Doc. 21). The Court denied the Motion on August 15, 2018, noting that
Plaintiff’s Amended Complaint had been dismissed and would be again if he re-filed it. (Doc.
22). The Court then extended Plaintiff’s deadline for filing an amended complaint to August 28,
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2018. Id. That deadline has passed without Plaintiff filing a Second Amended Complaint or
requesting an extension of time to do so. The Court will not allow this case to linger indefinitely.
As a result, this case is DISMISSED with prejudice for failure to comply with an order
of this Court and failure to prosecute. FED. R. CIV. P. 41(b); see Ladien v. Astrachan, 128 F.3d
1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994). Further, because the
Amended 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 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 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: September 4, 2018

s/ J. PHIL GILBERT
United States District Judge
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