Johnson v. Moore et al

Filing 12

ORDER DISMISSING CASE: This action is DISMISSED with prejudicefor failure to prosecute. FED. R. CIV. P. 41(b). This dismissal shall count as one of Plaintiffs three allotted strikes under the provisions of 28 U.S.C. § 1915(g). The Clerk is DIRECTED to close the case and enter judgment accordingly. Signed by Judge David R. Herndon on 8/3/2018. (dsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KEVIN JOHNSON,
#Y-26289,
Plaintiff,
vs.

Case No. 18-CV-953-DRH

JILL MOORE,
DRAKE MILLER
ALEXIS BRAZIL,
DUSTIN GULLY, and
BRANDON PAITE,
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
This matter is before the Court for case management. Plaintiff filed this
action on April 16, 2018, claiming that, when he was previously incarcerated at
the Harrisburg County Jail, officials were deliberately indifferent to his medical
needs. On June 29, 2018, this Court entered an order dismissing the Complaint
pursuant to 28 U.S.C. § 1915A for failure to state a claim upon which relief may
be granted. (Doc. 11). Plaintiff was given until July 26, 2018, to file an amended
complaint, and the Clerk mailed him a blank complaint form for his use in
preparing his amended pleading. Plaintiff was warned that if he failed to submit
an amended complaint, this case would be dismissed with prejudice, and the
dismissal would count as a “strike” under 28 U.S.C. § 1915(g).
Plaintiff’s deadline has come and gone, and Plaintiff has failed to respond in

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any way. This action is therefore subject to dismissal for failure to prosecute.
IT IS HEREBY ORDERED that this action is DISMISSED with prejudice
for failure to prosecute. FED. R. CIV. P. 41(b); see generally James v. McDonald’s

Corp., 417 F.3d 672, 681 (7th Cir. 2005); Ladien v. Astrachan, 128 F.3d 1051
(7th Cir. 1997); Lucien v. Breweur, 9 F.3d 26, 29 (7th Cir. 1993) (dismissal for
failure to prosecute is presumptively with prejudice).
The Clerk is DIRECTED to CLOSE THIS CASE and enter judgment
accordingly.
This dismissal shall count as one of Plaintiff’s three allotted “strikes” under
the provisions 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 $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 dismissal, his notice of appeal must be filed
with this Court within thirty days of the entry of judgment.
4(a)(1)(A).

FED. R. APP. P.

A motion for leave to appeal in forma pauperis must set forth the

issues Plaintiff plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). 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. 1999); Lucien v. Jockisch, 133 F.3d 464,

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467 (7th Cir. 1998).

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 the judgment, and this 28-day deadline
cannot be extended.
IT IS SO ORDERED.

Judge Herndon
2018.08.03 13:35:57
-05'00'
United States District Judge

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