Smart v. Mitchell

Filing 14

ORDER DISMISSING CASE with prejudice for failure to prosecute and failure to comply with an Order of the Court. The Clerk is DIRECTED to CLOSE THIS CASE and enter judgment accordingly. The Clerk of Court is DIRECTED to transmit a copy of this Order and the Judgment to Plaintiff at Western Illinois Correctional Center as well as to his address of record. Signed by Judge Staci M. Yandle on 6/5/2024. (beb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRIAN DWAYNE SMART, # M51989
vs.

Plaintiff,

DAVID MITCHELL,
Defendant.

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Case No. 23-cv-03391-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
This matter is before the Court for case management. Plaintiff filed this action on October
16, 2023, claiming he was denied medical attention after he slipped and fell on a wet floor at
Pinckneyville Correctional Center (Doc. 1). On May 13, 2024, after the Pinckneyville librarian
informed the Clerk of Court that Plaintiff had been transferred to Western Illinois Correctional
Center, the Court entered a Notice of Impending Dismissal, ordering Plaintiff to provide written
notice of his current address by May 28, 2024, and warning him that if he failed to comply with
the order, this case would be dismissed with prejudice. (Doc. 13). The May 28, 2024, deadline
has come and gone, and Plaintiff has failed to update his address or respond in any way.
Accordingly, this action is DISMISSED with prejudice for failure to prosecute and failure
to comply with an Order of the Court. 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.

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Plaintiff’s obligation to pay the filing fee for this action was incurred at the time the action
was filed, thus the remainder of Plaintiff’s filing fee of $350.00 remains due and payable pursuant
to the Order granting Plaintiff’s motion to proceed IFP (Doc. 8). 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. FED. R. APP. P. 4(a)(1)(A). 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, 467 (7th Cir. 1998). 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 the judgment, and this 28-day deadline cannot be extended.
The Clerk of Court is DIRECTED to transmit a copy of this Order and the Judgment to
Plaintiff at Western Illinois Correctional Center as well as to his address of record.
IT IS SO ORDERED.
DATED: June 5, 2024
s/ Staci M. Yandle_____
STACI M. YANDLE
United States District Judge

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