Oliver v. Carr et al

Filing 6

ORDER DISMISSING CASE. Signed by Judge Staci M. Yandle on 10/7/2019. (ksp)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS KING MICHAEL OLIVER, also known as MICHAEL OLIVER, #B89925, Plaintiff, vs. G. ROWALD, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 19−cv–00899−SMY MEMORANDUM AND ORDER YANDLE, District Judge: This matter is before the Court for case management. Plaintiff King Michael Oliver filed this action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights (Doc. 1). The Complaint did not survive screening because Oliver failed to state a claim for relief, and on August 21, 2019, the Court dismissed the Complaint without prejudice pursuant to 28 U.S.C. § 1915A. (Doc. 5). Oliver was granted leave to file a First Amended Complaint on or before September 23, 2019. (Doc. 5, p. 6). Oliver was warned that if he failed to submit a First Amended Complaint, this case would be dismissed with prejudice. (Id.). The deadline to file a First Amended Complaint has passed. Oliver has not filed a First Amended Complaint, nor has he requested an extension. The Court will not allow this matter to linger indefinitely. Accordingly, IT IS HEREBY ORDERED that this action is DISMISSED with prejudice for Oliver’s failure to comply with the Court’s Order to file a First Amended Complaint and to prosecute his claim. 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); Lucien v. Breweur, 9 F.3d 26, 29 (7th Cir. 1993) (dismissal for failure to prosecute is presumptively with prejudice). Further, because the Complaint failed to state a claim upon which relief may be granted, this dismissal shall count as a strike for purposes of 28 U.S.C. 1915(g). Oliver is ADVISED that his 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 Oliver wishes to appeal this Order, he must file a notice of appeal with this Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A motion for leave to appeal in forma pauperis must set forth the issues Oliver plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If Oliver chooses 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, 85859 (7th Cir. 1999); Lucien, 133 F.3d at 467. Moreover, if the appeal is found to be nonmeritorious, Oliver may incur a “strike” under 28 U.S.C. § 1915(g). 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 of Court is DIRECTED to enter judgment accordingly and close the case. IT IS SO ORDERED. DATED: OCTOBER 7, 2019 s/ Staci M. Yandle_________ STACI M. YANDLE United States District Judge 2

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