Petermon v. Purdue

Opinion

THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

TIMOTHY PETERMON, #M24669, ) ) Plaintiff, ) vs. ) Case No. 3:20-cv-00406-GCS ) BRYAN L. PURDUE, ) JEFFREY BICE, ) JANA K. CARIE, ) KEVIN KINK, ) SHANAE B. MAYBERRY, ) PATTY SNEED, ) MARY WEAVER, ) JOHN BALDWIN, ) DARREN N. WILLIAMS, ) and LT. OCHS, ) ) Defendants. )

MEMORANDUM AND ORDER

SISON, Magistrate Judge: This matter is before the Court for case management. The Court dismissed Plaintiff Timothy Petermon’s original Complaint (Doc. 1) upon threshold review, concluding that it failed to state a claim upon which relief may be granted. (Doc. 11). Plaintiff, a state prisoner, was instructed that he may file an amended complaint no later than March 30, 2021 to re-plead his retaliation claim in Count 1 against Defendant Purdue. (Doc. 11, p. 14-15). In order to overcome the bar to that claim under Heck v. Humphrey, 512 U.S. 477 (1994), Plaintiff must demonstrate that the allegedly false disciplinary report of October 2, 2018, which resulted in the revocation of good conduct credits, has been invalidated or expunged. (Doc. 11, p. 5-7, 14). Plaintiff was warned that if he failed to file an amended complaint by March 30, 2021, this case would be dismissed. (Doc. 11, p. 15). The March 30th deadline has now passed, and Plaintiff has not submitted an amended complaint or any other

communication regarding his case. Accordingly, this case will be dismissed. IT IS HEREBY ORDERED that this Section 1983 action is DISMISSED for failure to prosecute. See FED. R. CIV. PROC. 41(b). Because Plaintiff’s retaliation claim in Count 1 appears to be Heck-barred, the dismissal is without prejudice. See Polzin v. Gage, 636 F.3d 834, 839 (7th Cir. 2011). See also Hill v. United States, 762 F.3d 589, 591 (2014)(noting that court should explain why dismissal for failure to prosecute should be without prejudice

to overcome the presumption that such dismissal is with prejudice); Lucien v. Breweur, 9 F.3d 26, 29 (7th Cir. 1993). The Court determined that if not for the Heck bar, Plaintiff’s retaliation claim could survive initial review under 28 U.S.C. § 1915A. (Doc. 11, p. 5-7). Accordingly, the Court does NOT count this dismissal as one of Plaintiff’s three allotted “strikes” under the

provisions of 28 U.S.C. § 1915(g). If Plaintiff wishes to appeal this dismissal, he may file a notice of appeal with this Court within thirty days of the entry of judgment. See FED. R. APP. PROC. 4(a)(1)(A). A motion for leave to appeal in forma pauperis should set forth the issues Plaintiff plans to present on appeal. See FED. R. APP. PROC. 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. PROC. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725- 726 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-859 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). Moreover, if the appeal is found to be non-meritorious, 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. See FED. R. APP. PROC. 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. IT IS SO ORDERED. Digitally signed . . - _ .by Judge Sison 2 DATED: April 19, 2021. AQ) ts Date: 2021.04.19 10:53:25 -05'00' GILBERT C. SISON United States Magistrate Judge

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