Smith v. USP Marion

Opinion

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

WILLIE JAMES SMITH, #02234-120, ) ) Plaintiff, ) ) vs. ) Case No. 21-cv-01296-JPG ) USP MARION and ) FEDERAL BUREAU OF PRISONS, ) ) Defendants. )

MEMORANDUM AND ORDER GILBERT, District Judge: On October 20, 2021, Plaintiff Willie James Smith filed this action against the Federal Bureau of Prisons (FBOP) and the United States Penitentiary at Marion, Illinois (USP-Marion) pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). (Doc. 1). The Complaint did not survive screening under 28 U.S.C. § 1915A, and the Court dismissed it without prejudice on January 12, 2022. (Doc. 7). Plaintiff was granted leave to file a First Amended Complaint on or before February 10, 2021. However, he was warned that the action would be dismissed with prejudice, if he failed to do so. He was also warned that the dismissal would count as one of his three allotted “strikes” under 28 U.S.C. § 1915(g). (Id.). Plaintiff missed the deadline for filing the First Amended Complaint. He did not request an extension. More than a week has passed since this deadline expired, and the Court has received no communication from him. The Court will not allow this matter to linger indefinitely. This action shall be dismissed with prejudice for failure to comply with the Court’s Order (Doc. 7) to file a First Amended Complaint and/or to prosecute his claims. See FED. R. CIV. P. 41(b). The dismissal shall count as one of Plaintiff’s three allotted “strikes” within the meaning of Section 1915(g). Disposition IT IS HEREBY ORDERED that this action is DISMISSED with prejudice based on Plaintiff’s failure to comply with the Court’s Order (Doc. 7) to file a First Amended Complaint

and his failure to prosecute his claims. 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 counts as a “strike” within the meaning of 28 U.S.C. § 1915(g). If Plaintiff wishes to appeal this Order, he may 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. Moreover, if the appeal is found

to be nonmeritorious, Plaintiff may also incur another “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 judgment, and this 28-day deadline cannot be extended. The Clerk’s Office is DIRECTED to close this case and enter judgment accordingly. IT IS SO ORDERED. DATED: 2/22/2022

s/J. Phil Gilbert J. PHIL GILBERT United States District Judge