Bishop v. Johnson

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

WILLIAM W. BISHOP, III, ) #M48349, ) ) Plaintiff, ) ) vs. ) Case No. 19-cv-01034-SMY ) C/O JOHNSON, ) ) Defendant. )

ORDER DISMISSING CASE YANDLE, District Judge: Plaintiff William W. Bishop, III filed this action for alleged deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. (Doc. 1). The Complaint did not survive screening because Plaintiff failed to state a claim for relief, and on December 5, 2019, the Court dismissed the Complaint without prejudice pursuant to 28 U.S.C. § 1915A. (Doc. 12). Plaintiff was granted leave to file a First Amended Complaint on or before January 6, 2020. (Doc. 12, p. 3). Plaintiff 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. Plaintiff has not filed a First Amended Complaint, nor has he requested an extension. Accordingly, this action is DISMISSED with prejudice for Plaintiff’s failure to comply with the Court’s Order to file a First Amended Complaint and failure 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). Plaintiff 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 Plaintiff 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 Plaintiff plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If Plaintiff chooses to appeal, he will be liable for the $505.00 appellate filing fee irrespective of the outcome of the appeal. 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, 133 F.3d at 467. Moreover, if the appeal is found to be without merit, Plaintiff 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 close this case and enter judgment accordingly. IT IS SO ORDERED.

DATED: January 17, 2020

s/ Staci M. Yandle_________ STACI M. YANDLE United States District Judge