Colbroth v. Reynolds et al

Filing 13

ORDER DISMISSING CASE without prejudice based on Plaintiff's failure to comply with the Court's Orders (Docs. 4 and 10) and his failure to prosecute his claims. 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). Signed by Judge J. Phil Gilbert on 3/31/2021. (jsy)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
VERNON D. COLBROTH, #08878-025,

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Plaintiff,
vs.
MARILYNN REYNOLDS,
SGT. ETHERTON,
WILLIAMSON COUNTY JAIL,
and C/O BAKER,
Defendants.

Case No. 21-cv-00197-JPG

MEMORANDUM & ORDER
GILBERT, District Judge:
On February 19, 2021, this case was opened upon receipt of a Complaint filed pursuant to
42 U.S.C. § 1983 by Plaintiff Vernon Colbroth. (Doc. 1). On the same date, the Court entered a
Notice and Order advising Plaintiff of his ongoing obligation to notify the Court of any address
changes within seven (7) days of the change. (Doc. 4). The Order states, “[Y]ou are advised that
if your address changes, you must notify the Court within seven days of the change by filing a
Notice of Change of Address. Failure to do so could result in the dismissal of your case.” (Id.).
Before the Court screened the Complaint pursuant to 28 U.S.C. § 1915A, Plaintiff’s mail
was returned to the Court undeliverable. (See Docs. 5 and 9). Therefore, on March 16, 2021, the
Court entered the following show cause order:
ORDER TO SHOW CAUSE: Plaintiff was advised of his continuing obligation to keep
the Clerk of Court informed of any change in his address and that failure to timely update
his address could result in dismissal of this action for want of prosecution. (See Doc. 4).
One or more documents mailed to Plaintiff by the Court has been returned undeliverable.
(See Docs. 5 and 9). Plaintiff is hereby ORDERED to SHOW CAUSE on or before
MARCH 29, 2021, why this action should not be dismissed based on his failure to comply
with the Court’s Order at Doc. 4 to update his address and for failure to prosecute his
claims. FED. R. CIV. P. 41(b). Plaintiff is WARNED that failure to respond to this Order
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will result in dismissal of the action. The Clerk is DIRECTED to transmit a copy of this
Order to Show Cause to Plaintiff at the address he most recently provided to the Court. The
Court will DEFER its preliminary review of this matter until after Plaintiff complies with
this show cause order.
(Doc. 10). To comply with the show cause order, Plaintiff was required to update his address and
explain why this case should not be dismissed for non-compliance with the Order.

(Id.).

The deadline for doing so was March 29, 2021.
That deadline has now passed. Plaintiff has failed to notify the Court of his address change.
He also failed to respond to the Order to Show Cause. The Court has since received additional
items addressed to Plaintiff and returned to the Court undeliverable. (See Docs. 3, 4, and 12).
The Court will not allow this matter to linger indefinitely. This action will be dismissed
without prejudice based on Plaintiff’s failure to comply with the Order at Document 4 and the
Show Cause Order at Document 10. See FED. R. CIV. P. 41(b). The dismissal shall not count as
one of Plaintiff’s three allotted “strikes” within the meaning of 28 U.S.C. § 1915(g).
Disposition
IT IS ORDERED that this action is DISMISSED without prejudice, based on Plaintiff’s
failure to comply with the Court’s Order at Document 4 to notify the Court of any address changes,
to comply with the Court’s Order to Show Cause at Document 10, and to prosecute his claims in
this case. 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). This dismissal does not count as one of Plaintiff’s
three allotted “strikes” within the meaning of Section 1915(g).
IT IS 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 $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).
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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, 133 F.3d at 467. 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 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: 3/31/2021
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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