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
CHARMELL BROWN )
)
Petitioner, )
)
vs. ) Case No. 21-cv-121-SMY
)
ANTHONY WILLS, )
)
Respondent. )
MEMORANDUM AND ORDER
YANDLE, District Judge:
This matter is before the Court for case management. Petitioner Charmell Brown filed this
habeas corpus action pursuant to 28 U.S.C. § 2254 on February 2, 2021 but did not submit the
filing fee with his Petition. On February 2, 2021, the Court ordered Brown to either pay the $5.00
filing fee, submit a motion to proceed in forma pauperis (“IFP”) no later than March 4, 2021, or
face dismissal of this action for want of prosecution. (Doc. 3). More than 30 days have passed
since that deadline, and Brown has not paid the filing fee, filed a motion to proceed IFP, or
submitted any related correspondence to the Court.
Accordingly, this habeas corpus 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). The
Clerk is DIRECTED to CLOSE THIS CASE and enter judgment accordingly. All pending
motions are TERMINATED AS MOOT.
If Petitioner wishes to appeal the dismissal of this case, his notice of appeal must be filed
with this Court within 30 days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A motion for
leave to appeal in forma pauperis (“IFP”) must set forth the issues Petitioner plans to present on
appeal. See FED. R. App. P. 24(a)(1)(C). Petitioner must be granted a certificate of appealability
prior to appealing. See 28 U.S.C. § 2253(c); Walker v. O’Brien, 216 F.3d 626, 630 (7th Cir. 2000).
If Petitioner does choose to appeal and 1s allowed to proceed IFP, he will be liable for a portion of
the $505.00 appellate filing fee (the amount to be determined based on his prison trust fund account
records for the past six months) 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).
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. Other motions, including a Rule 60 motion for relief from a final judgment, do not
toll the deadline for an appeal.
IT IS SO ORDERED.
Dated: July 20, 2021 Nowe kt Goll
STACI M. YANDLE
United States District Judge