Zeller v. Unknown Agents et al

Filing 17

ENTRY STRICKEN: ORDER DISMISSING CASE. Signed by Judge J. Phil Gilbert on 11/18/2022. (jsy) Modified on 11/18/2022 (tjk).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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TIMOTHY L. GARRARD, #10087-025,
Plaintiff,
vs.
ANDY GARDEN,
TROY REED,
JANE DOE,
and JOHN DOE,
Defendants.

Case No. 22-cv-02236-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
On October 7, 2022, Plaintiff Timothy Garrard filed this civil rights action pro se against
officials at Marion County Law Enforcement Center for subjecting him to unconstitutional
conditions of confinement at the Jail on September 18, 2022. (Doc. 1). The Complaint did not
survive screening under 28 U.S.C. § 1915A, and the Court dismissed it without prejudice on
October 13, 2022. (Doc. 4). Plaintiff was granted leave to file a First Amended Complaint on or
before November 7, 2022. (Id.). However, he was warned that the action would be dismissed
with prejudice if he failed to do so. He was also warned that the dismissal would count as one of
his three allotted “strikes” under 28 U.S.C. § 1915(g). (Id.).
Plaintiff missed the deadline for filing the First Amended Complaint on November 7, 2022.
Almost two weeks have passed since this deadline expired. However, the Court has received no
communication from him. The Court will not allow this matter to linger indefinitely.
This action shall be dismissed with prejudice for failure to comply with the Court’s Order
(Doc. 4) to file a First Amended Complaint and/or to prosecute his claims. See FED. R. CIV. P.

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41(b). The dismissal counts as one of Plaintiff’s three allotted “strikes” within the meaning of
Section 1915(g).
Disposition
IT IS HEREBY ORDERED that this action is DISMISSED with prejudice based on
Plaintiff’s failure to comply with the Court’s Order (Doc. 4) to file a First Amended Complaint
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).
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)(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. 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. He must
list each of the issues he intends to appeal in the notice of appeal. 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 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: 11/18/2022
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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