Bankston v. Dennison et al

Filing 11

ORDER DISMISSING CASE without prejudice, for failure to comply with an Order of this Court. This dismissal shall not count as a strike under 28 U.S.C. § 1915(g). Signed by Judge Staci M. Yandle on 3/23/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RINALDO BANKSTON, # N-31614,
Plaintiff,
vs.
WARDEN DENNISON and
JAMES BALDWIN,
Defendants.

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Case No. 17-cv-1371-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
This matter is before the Court for case management. Plaintiff has “struck out” under 28
U.S.C. § 1915(g). After reviewing the Complaint, the Court concluded Plaintiff did not meet the
imminent danger requirement. (Doc. 5). Accordingly, on January 11, 2018, the Court denied
Plaintiff’s IFP Motion and ordered Plaintiff to pay the full filing fee of $400.00 on or before
February 1, 2018. Id. Plaintiff was warned that failure to comply would result in dismissal. Id.
In lieu of paying the filing fee, Plaintiff filed a Motion for Temporary Restraining Order
(“TRO”) and/or a Motion for Preliminary Injunction. (Doc. 6, 6-1). Both motions were denied
on January 23, 2018. (Doc. 8). One week later, Plaintiff filed a Motion to Reconsider. (Doc. 9).
On February 21, 2018, the Court denied Plaintiff’s Motion to Reconsider and ordered Plaintiff to
pay the full filing fee of $400.00 on or before February 28, 2018. (Doc. 10). Once again,
Plaintiff was warned that failure to comply would result in dismissal. Id. Further, the Court’s
order was forwarded to Plaintiff at Shawnee Correctional Center.
The date to pay the filing fee has passed, and Plaintiff has failed to pay. As a result, this
action is DISMISSED without prejudice, for failure to comply with an Order of this Court. FED.

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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). All pending motions are DENIED AS MOOT. This
dismissal shall not count as a “strike” under 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). To that end, the agency
having custody of the Plaintiff is DIRECTED to remit the $400.00 filing fee from his prison
trust fund account if such funds are available. If he does not have $400.00 in his account, the
agency must send an initial payment of 20% of the current balance or the average balance during
the past six months, whichever amount is higher. Thereafter, Plaintiff shall make monthly
payments of 20% of the preceding month's income credited to Plaintiff's prison trust fund
account until the $400.00 filing fee is paid in full. The agency having custody of Plaintiff shall
forward these payments from the Plaintiff’s trust fund account to the Clerk of this Court each
time the Plaintiff’s account exceeds $10.00, until the $400.00 fee is paid. Payments shall be
mailed to: Clerk of the Court, United States District Court for the Southern District of Illinois,
P.O. Box 249, East St. Louis, Illinois 62202. The Clerk is DIRECTED to mail a copy of this
order to the Trust Fund Officer at Shawnee Correctional Center upon entry of this Order.
The Clerk shall CLOSE THIS CASE and enter judgment accordingly.
If Plaintiff wishes to appeal the dismissal of this case, his notice of appeal must be filed
with this Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). 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. P. 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.

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1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). Moreover, because Plaintiff has
“struck out” and has not shown that he is in imminent danger of serious physical injury, this
Court will not grant him permission to proceed in forma pauperis on appeal. Finally, 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.
IT IS SO ORDERED.
DATED: March 23, 2018

s/Staci M. Yandle
United States District Judge

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