Beschorner v. Waggoner et al

Filing 6

ORDER DISMISSING CASE with prejudice, based on Plaintiff's failure to comply with this Court's Order to file a First Amended Complaint and renew his request for IFP or pay the filing fee for this action no later than March 26, 2018. IT I S ALSO 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 $400.00 remains due and payable. Signed by Judge Nancy J. Rosenstengel on 4/3/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STANLEY N. BESCHORNER,
Plaintiff,
vs.
STEPHANIE WAGGONER
and JAMES BALDWIN,
Defendants.

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Case No. 18-cv-00379-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Stanley Beschorner is a former inmate who filed this civil rights action pursuant
to 42 U.S.C. § 1983 against the Illinois Department of Corrections’ director and Vandalia
Correctional Center’s warden. (Doc. 1). In the Complaint, Plaintiff claims that his release from
prison was delayed by 85 days due to a sentence calculation error by prison officials. Id. In
connection with his claim of excessive confinement, Plaintiff requests monetary relief. Id.
Plaintiff failed to set forth allegations against the named defendants in the statement of
his claim. As a result, the Complaint did not survive screening under 28 U.S.C. § 1915(e)(2).
On February 26, 2018, the Court denied Plaintiff’s Motion for Leave to Proceed in forma
pauperis (“IFP Motion”) and dismissed the Complaint. (Doc. 5). See Luevano v. Wal–Mart
Stores, Inc., 722 F.3d 1014, 1018 (7th Cir. 2013) (district court is required by § 1915(e)(2) to
deny IFP and dismiss the Complaint at any time the allegation of poverty is untrue, the action is
frivolous, the action fails to state a claim, or the action seeks monetary relief against an immune
defendant). However, Plaintiff was granted leave to file a First Amended Complaint and either
renew his request for IFP or prepay the filing fee for this action on or before March 26, 2018.

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(Doc. 5, pp. 9-10). He was warned that failure to do so by the deadline would result in dismissal
of the action with prejudice. 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)).
To date, Plaintiff has not filed a First Amended Complaint. He has not renewed his IFP
Motion or paid the filing fee for this action. More than a week has now passed since the deadline
expired, and Plaintiff has not requested an extension of the deadline.
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 an Order of this Court (Doc. 5, pp. 910) and failure to prosecute his claims. See FED. R. CIV. P. 41(b). Plaintiff incurred the
obligation to pay a filing fee for this action when he filed this case, and his obligation to pay the
full filing fee survives dismissal of this matter.
Disposition
IT IS HEREBY ORDERED that this action is DISMISSED with prejudice, based on
Plaintiff’s failure to comply with this Court’s Order to file a First Amended Complaint and
renew his request for IFP or pay the filing fee for this action no later than March 26, 2018. (Doc.
5, pp. 9-10). 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).
IT IS ALSO 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 $400.00 remains due and payable. See 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

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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, 133 F.3d at
467. 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 accordingly.
IT IS SO ORDERED.
DATED: April 3, 2018
s/ NANCY J. ROSENSTENGEL
District Judge
United States District Court

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