Wilson v. Lashbrook

REAGAN, Chief District Judge

MEMORANDUM AND ORDER REAGAN, Chief District Judge :

This matter is before the Court for case management. Plaintiff filed this action on August 20, 2015, when he submitted his "Petition for Redress of Grievance" (Doc. 1) as his initial pleading. In it, he claims that Defendant Lashbrook is violating "a series of federal laws" by ignoring Plaintiff's emergency grievance seeking access to a notary public and copies in order to meet a court filing deadline. He requested the undersigned Judge to contact the Defendant and "apprise her of the absolute fact" that her actions are in violation of the law.

Upon receipt of Plaintiff's pleading, the Clerk immediately sent him a letter (Doc. 2) advising him of the case number and filing fee requirements for a civil action. He was warned that if he did not submit either the $400.00 filing fee or a motion for leave to proceed in forma pauperis (IFP) within 30 days, his case would be subject to dismissal. He was provided with a blank form motion for IFP. Plaintiff's 30-day deadline of September 21, 2015, has come and gone, and Plaintiff has failed to respond in any way. This action is therefore subject to dismissal for failure to prosecute.

IT IS HEREBY ORDERED that this action is DISMISSED with prejudice for failure to prosecute. FED. R. CIV. P. 41(b); see generally James v. McDonald's Corp., 417 F.3d 672, 681 (7th Cir. 2005); Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Lucien v. Breweur, 9 F.3d 26, 29 (7th Cir. 1993) (dismissal for failure to prosecute is presumptively with prejudice).

This dismissal shall not count as one of Plaintiff's three allotted "strikes" under the provisions of 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). Accordingly, 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, Plaintiff shall make monthly payments of 20% of the preceding month's income credited to Plaintiff's prison trust fund account until the $400.00 filing fee is paid in full. The agency having custody of Plaintiff shall forward these payments from the Plaintiff's trust fund account to the Clerk of this Court each time the Plaintiff's account exceeds $10.00, until the $400.00 fee is paid. Payments shall be mailed to: Clerk of the Court, United States District Court for the Southern District of Illinois, P.O. Box 249, East St. Louis, Illinois 62202. The Clerk is DIRECTED to mail a copy of this order to the Trust Fund Officer at Pinckneyville Correctional Center upon entry of this Order.

The Clerk is DIRECTED to CLOSE THIS CASE and enter judgment accordingly. All pending motions are TERMINATED AS MOOT.

If Plaintiff wishes to appeal the dismissal of this case, his notice of appeal must be filed 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 should set forth the issues Plaintiff plans to present on appeal. See FED. R. APP. P. 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. 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 v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). Moreover, if the appeal is found to be nonmeritorious, 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. 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.

IT IS SO ORDERED.

DATED: October 1, 2015

s/ MICHAEL J. REAGAN

Chief Judge

United States District Court