Diaz v. Godinez et al

Filing 11

MEMORANDUM AND ORDER DISMISSING CASE. 6 MOTION for Service of Process at Government Expense filed by Elias Diaz, and 5 MOTION for Recruitment of Counsel filed by Elias Diaz are denied as moot. Signed by Judge David R. Herndon on 1/23/2018. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ELIAS DIAZ,
#M02281,
Plaintiff,
vs.
SALVADOR GODINEZ,
DONALD STOLWORTHY,
GLADYSE TAYLOR,
MICHAEL RANDLE,
TY BATES,
HENRY BAYER,
JOHN R. BALDWIN,
KIMBERLY BUTLER,
RICK HARRINGTON,
MICHAEL ATCHISON,
SHANNIS STOCK,
ALEX JONES,
TODD BROOKS,
ANTHONY WILLIAMS,
JACQUELINE A. LASHBROOK,
DOUG LYERLA,
WILLIAM REES,
BRAD THOMAS,
TONY FERRANTO,
KEVIN HIRSCH,
RICHARD PAUTLER,
JAMES R. BROWN,
JOSEPH COWAN,
CHAD E. HASEMEYER,
PAGE,
RICHARD D. MOORE,
PAUL OLSON,
BRIAN THOMAS,
BILL WESTFALL,
ROBERT DILDAY,
EOVALDI,
ROBERT HUGHS,
RAYMOND ALLEN,

Case

1

–01259 DRH

JAY ZIEGLER,
JAMES BEST,
LT. WHITELY,
CLINT MAYER,
KENT BROOKMAN,
MICHAEL SAMUEL,
TORVILLE,
WILLIAM QUALLS,
JAMES A. HOPPENSTED,
FRICKY,
ROGER SHURTZ,
JOSHUA BERNER,
DANIEL DUNN,
HARRIS,
ANTHONY WILLS,
SIMMONS,
SPILLER,
DONALD LINDENBERG,
VERGIL SMITH,
KARUSE,
REBECCA CREASON,
DR. BAIG,
MISS GREATHOUSE,
MISS WHITESIDE,
DR. HILLERMAN,
MS. DELONG,
SGT. GRAW
GAIL WALLS,
BRAD BRAMLET,
MISS NEW,
SHANE GREGSON,
JENNIFER CLENDENIN,
TONYA KNUST,
MORGAN TEAS,
DIA RODELY,
KELLIE S. ELLIS,
RODNEY ROY,
LAFONE,
CARLA DRAVES,
VERGIL SMITH,
SUSAN HILL,
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MARK PHONIX,
J. COWAN,
K. ALLSUP,
BETSY SPILLER,
JEANETTE COWAN,
LORI OAKLEY,
MARVIN BOCHANTIN,
KELLY PIERCE,
SHERRY BENTON,
TERRI ANDERSON,
SARA JOHNSON,
HURST,
RAKERS,
M. PRANGE,
BRINKLEY,
SIMPSON,
OBUCINA,
FISCHER
BRUCE RAUNER,
B. SMITH,
JEFF HUCHINSON,
J. WHITLEY,
ELLIS,
MENARD CORRECTIONAL CENTER,
ILLINOIS DEPARTMENT OF
CORRECTIONS,
WEXFORD HEALTH SERVICES, INC.
UNIDENTIFIED JOHN/JANE DOES,
A.F.S.C.M.E.,
JAMI WELLBORN,
MICHAEL MONJIE,
LINDA CARTER,
DR. KEWLKOWSK,
Defendants.
MEMORANDUM AND ORDER
HERNDON

3

On March 27, 2017, Plaintiff Elias Diaz, along with 26 other inmates at
Menard Correctional Center (“Menard”), filed a pro se civil rights action against
108 known and numerous unknown officials in the Illinois Department of
Corrections (“IDOC”) pursuant to 42 U.S.C. § 1983. See Bentz v. Godinez, et al.,
No. 17-cv-00315-MJR (S.D. Ill.) (“original action”).

The Complaint addressed

miscellaneous claims against these individuals for alleged violations of the
plaintiffs’ rights under the First, Sixth, Eighth, and Fourteenth Amendments and
Illinois state law. (Doc. 1). The original action has a complicated procedural
history that is summarized in the Memorandum and Severance Order dated
November 17, 2017. Id. In the same Order, the Court determined that joinder
was improper under Federal Rules of Civil Procedure 20 and 21 and severed
Plaintiff Diaz’s claims into the instant case. Id. In the same Order, the Court
dismissed the First Amended Complaint (Docs. 99, 100, 116, original action) for
failure to comply with Rule 8 of the Federal Rules of Civil Procedure. Id.
Plaintiff Diaz was granted leave to file a Second Amended Complaint on or
before December 15, 2017. (Doc. 1, p. 11). He was warned that the action would
be dismissed with prejudice, if he failed to file the Second Amended Complaint
consistent with the deadline and instructions set forth in the Court’s
Memorandum and Severance Order.

Id. (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)).

Plaintiff was also warned that he would incur a “strike”

pursuant to 28 U.S.C. § 1915(g). Id.

4

Plaintiff filed a Motion for Extension to File Second Amended Complaint on
December 6, 2017.

(Doc. 8).

deadline.

Under the extended deadline, Plaintiff’s Second Amended

(Doc. 9).

The Court granted a 30-day extension of the

Complaint was due on or before January 16, 2018. Id. In the same Order, the
Court reiterated that “[f]ailure to file the Second Amended Complaint by this
deadline or consistent with the instructions set forth in the Memorandum and
Severance Order dated November 17, 2017, shall result in dismissal of this action
with prejudice and with a ‘strike.’”

Id.

(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)).
Despite these repeated warnings, Plaintiff missed the deadline for filing the
Second Amended Complaint on January 16, 2018. More than a week has passed
since the deadline expired, and he has not requested another extension of the
deadline. In fact, the Court has received no communications from Plaintiff since
December 6, 2017. (Doc. 8).
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 the Orders
(Doc. 1, p. 11; Doc. 9) to file a Second Amended Complaint and Plaintiff’s failure
to prosecute his claims. See FED. R. CIV. P. 41(b). The dismissal will count as
one of Plaintiff’s three allotted “strikes” within the meaning of § 1915(g).
Disposition

5

IT IS HEREBY ORDERED that this action is DISMISSED with prejudice,
based on Plaintiff’s failure to comply with the Court’s Orders (Doc. 1, p. 11; Doc.
9) to file a Second Amended Complaint and Plaintiff’s failure to prosecute his
claims. 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).

This dismissal

counts as one of Plaintiff’s three allotted “strikes” within the meaning of § 1915(g).
IT IS ALSO ORDERED that Plaintiff’s pending Motion for Service of
Process at Government Expense (Doc. 6) and Motion for Recruitment of Counsel
(Doc. 5) are both DENIED as MOOT. The Motion for Recruitment of Counsel is
also denied because Plaintiff made no effort to retain counsel on his own before
seeking the Court’s assistance, and the Court is unable to assess Plaintiff’s ability
to litigate his claims absent more clearly defined claims in an operative Second
Amended Complaint.
IT IS FURTHER 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.

Accordingly, 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.

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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, 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 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

Judge Herndon
2018.01.23
15:44:11 -06'00'

accordingly.
IT IS SO ORDERED.

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