Henneberg v. Vandalia Officials

Opinion

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

DONALD HENNEBERG,

Plaintiff, Case No. 20-cv-00225-RJD v.

JOHN DOE, and ANGELA LOCKE,

Defendants.

MEMORANDUM AND ORDER

MAGISTRATE JUDGE REONA J. DALY: This case is before the Court for case management purposes. Plaintiff is proceeding on an Eighth Amendment claim against a single defendant, John Doe Correctional Officer, who has yet to be identified and served process. (Doc. 17). Plaintiff was allowed to engage in limited discovery in order to identify the John Doe. (Doc. 24). Defendant Warden Locke provided the identity of the individual described by Plaintiff, but Plaintiff did not file a motion to substitute by the deadline of March 21, 2022. (Doc. 24, 29). The Court granted Plaintiff additional time, and again, he failed to file a motion to substitute. On May 9, 2022, Plaintiff was ordered to show cause as to why his case should not be dismissed for failure to prosecute his claims and comply with an order of the Court. (Doc. 35). To date, Plaintiff has not filed a response to the show cause order, filed a motion to substitute, or requested additional time. The Court will not allow this matter to linger indefinitely. Accordingly, this action is DISMISSED with prejudice for failure to comply with orders of the court and for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). (See Doc. 24, 30, 35).

Plaintiff is ADVISED that his obligation to pay the filing fee for this action was incurred at the time the action was filed. Therefore, the filing fee 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. 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. See FED. R. APP. P. 24(a)(1)(C). 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 of Court shall enter judgment and close the case. IT IS SO ORDERED.

DATED: June 1, 2022

s/ Reona J. Daly Hon. Reona J. Daly United States Magistrate Judge