Munson v. Overall et al
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 1/11/2018. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES MUNSON, #N95249,
L. OVERALL, et al.,
Case No. 17-cv-01277-DRH
MEMORANDUM AND ORDER
HERNDON, District Judge:
On November 22, 2017, Plaintiff James Munson filed this action, along with
a Motion for Leave to Proceed in forma pauperis (“IFP Motion”). (Doc. 5). The
Court denied Plaintiff’s IFP Motion on December 1, 2017. (Doc. 7). The Court
noted that Plaintiff appeared capable of paying the $400.00 filing fee based on the
funds in his prisoner trust fund account.
(Doc. 7, p. 3).
He was therefore
ordered to pay the full filing fee of $400.00 within 30 days of December 1, 2017 if
he wished to proceed. Id. The Court warned Plaintiff that failure to pay the fee by
the deadline would result in dismissal of the action. 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)).
That deadline 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.
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.
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
IT IS SO ORDERED.
United States District Judge
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