Fitch v. Ahmed

Opinion

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

DAVID KENT FITCH, 34775-048, ) ) Plaintiff, ) ) vs. ) CIVIL NO. 19-cv-1177-JPG ) FASIL VAKIL AHMED, et al. ) ) Defendants. ) ) ORDER DISMISSING CASE

GILBERT, District Judge: This case was opened when Plaintiff David Kent Fitch filed a Motion for Emergency Expedited Preliminary Injunction without a Complaint on October 28, 2019. (Doc. 1). The Court construed the filing as a motion for a temporary restraining order and denied it without prejudice on October 30, 2019. (Doc. 3). Plaintiff was ordered to file a Complaint on or before November 27, 2019, if he intended to pursue his claims in this case. (Id.). Plaintiff was also ordered to file a Motion for Leave to Proceed in forma pauperis (“IFP”) or pay the full filing fee of $400.00 for this action on or before November 27, 2019. (Id.). Plaintiff was warned in that Order that failure to pay the filing fee, file for IFP, or file a Complaint would result in dismissal of this case. The date to comply has passed, and Plaintiff has not paid the filing fee, filed for IFP, or filed a Complaint as ordered. Accordingly, this case is DISMISSED without prejudice for Plaintiff’s failure to comply with several court orders (Doc. 3). 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 shall NOT count as one of Plaintiff’s three allotted “strikes” under 28 U.S.C. § 1915(g). Plaintiff’s obligation to pay the filing fee for this action was incurred at the time the action was filed, thus the filing fee of $400.00 remains due and payable. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). The agency having custody of the plaintiff is directed to remit the $400.00 filing fee from his prison trust fund account if such funds are available. If he does not have $400.00 in his account,

the agency must send an initial payment of 20% of the current balance or the average balance during the past six months, whichever amount is higher. Thereafter, the agency shall begin forwarding monthly payments of 20% of the preceding month’s income credited to Plaintiff’s trust fund account (including all deposits to the inmate account from any source) until the statutory fee of $400.00 is paid in its entirety. The agency having custody of Plaintiff shall forward payments from Plaintiff’s account to the Clerk of Court each time the Plaintiff’s account exceeds $10.00 until the $400.00 filing fee is paid. Payments shall be mailed to: Clerk of the Court, United States District Court for the Southern District of Illinois. The Clerk is DIRECTED to send a copy of this Order to the Trust Fund Officer at the Greenville Federal Correctional Institution upon entry of this Order.

The Clerk’s Office is DIRECTED to close this case. IT IS SO ORDERED. DATED: December 5, 2019 s/ J. PHIL GILBERT United States District Judge