dismissal for failure to prosecute is presumptively with prejudice
How later courts described this case
- dismissal for failure to prosecute is presumptively with prejudice
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTHONY BROWN, #K04318, )
)
Plaintiff, )
)
vs. ) Case No. 19-cv-01401-SMY
)
STATE OF ILLINOIS, )
)
Defendant. )
MEMORANDUM AND ORDER
YANDLE, District Judge:
This matter is before the Court for case management. Plaintiff Anthony Brown, formerly
an inmate of the Illinois Department of Corrections,1 filed this action pursuant to 42 U.S.C. § 1983
for alleged deprivations of his constitutional rights. The Complaint did not survive screening
because Brown failed to state a claim for relief, and on April 6, 2020, the Court dismissed the
Complaint without prejudice pursuant to 28 U.S.C. § 1915A. (Doc. 10).
Brown was granted leave to file a First Amended Complaint on or before June 5, 2020.
(Doc. 10, p. 2). Brown was warned that if he failed to submit a First Amended Complaint, this
case would be dismissed with prejudice. (Id., p. 3). The deadline to file a First Amended
Complaint has passed. Brown has not filed a First Amended Complaint, nor has he requested an
extension.
Accordingly, IT IS HEREBY ORDERED that this action is DISMISSED with
prejudice for Brown’s failure to comply with the Court’s Order to file a First Amended Complaint
and to prosecute his claim. Fed. R. Civ. P. 41(b); Ladien v. Astrachan, 128 F.3d 1051 (7th Cir.
1 Plaintiff was released after filing this action. (Doc. 8).
1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994); Lucien v. Breweur, 9 F.3d 26, 29 (7th
Cir. 1993) (dismissal for failure to prosecute is presumptively with prejudice). Further, because
the Complaint failed to state a claim upon which relief may be granted, this dismissal shall count
as a strike for purposes of 28 U.S.C. 1915(g).
Brown is ADVISED that his obligation to pay the filing fee for this action was incurred at
the time the action was filed, thus the filing fee of $350.00 remains due and payable. See 28 U.S.C.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
If Brown 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. P. 4(a)(1)(A). A motion for leave to appeal in
forma pauperis must set forth the issues Brown plans to present on appeal. See Fed. R. App. P.
24(a)(1)(C). If Brown chooses to appeal, he will be liable for the $505.00 appellate filing fee
irrespective of the outcome of the appeal. 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, 133 F.3d at 467. Moreover, if the appeal is found to be nonmeritorious, Brown
may incur a “strike” under 28 U.S.C. § 1915(g). 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.
The Clerk of Court is DIRECTED to enter judgment accordingly and close the case.
IT IS SO ORDERED.
DATED: July 6, 2020
s/ Staci M. Yandle_____
STACI M. YANDLE
United States District Judge