Bankston v. Dennison et al

Filing 14

ORDER DISMISSING CASE with prejudice for failure to comply with an order of this Court and failure to prosecute. This dismissal shall not count as one of Plaintiff's three allotted strikes within the meaning of 28 U.S.C. § 1915 (g). Signed by Judge David R. Herndon on 2/5/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHNNIE BANKSTON, #R16224,
Plaintiff,
vs.

Case No. 17-cv-01217-DRH

WARDEN DENNISON, et al.,
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
On November 6, 2017, Plaintiff Johnnie Bankston filed this action, along
with a Prisoner Trust Fund Account Statement (Doc. 2). On November 9, 2017,
he filed a Motion for Leave to Proceed in forma pauperis (“IFP Motion”). (Doc. 4).
The Court denied Plaintiff’s IFP Motion on December 12, 2017. (Doc. 6). The
Court found that Plaintiff had not shown that he was under imminent danger of
serious physical injury so as to escape the three-strikes rule of 28 U.S.C. §
1915(g). (Doc. 6, pp. 5-6). Plaintiff was therefore ordered to pay the full filing fee
of $400.00 on or before January 2, 2018. (Doc. 6, p. 7). This deadline was
extended to January 29, 2018, where it remained.

(Docs. 8, 11).

The Court

warned Plaintiff that failure to pay the fee by the deadline would result in
dismissal of the action.

(Docs. 6-8)

(citing 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)).

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Plaintiff’s deadline for paying his filing fee has now passed. Plaintiff has not
paid his filing fee. 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 and failure to prosecute. 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). This dismissal shall not 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 $400.00 remains due and payable.
See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.
1998).
All pending motions in this action are 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, 725-26 (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 a “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.

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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.

Judge Herndon
2018.02.05
10:45:18 -06'00'
United States District Judge

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