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
AMOS FULFORD, #R09402, )
)
Plaintiff, )
)
vs. ) Case No. 3:21-cv-00349-MAB
)
ANN LEHR, )
TAMMY STEVENS, )
TERRY GRISSOM, )
and ROB JEFFREYS, )
)
Defendants. )
MEMORANDUM AND ORDER
BEATTY, Magistrate Judge:
This matter is before the Court for case management. On January 3, 2022, the Court
dismissed Plaintiff Amos Fulford’s First Amended Complaint (Doc. 9) for failure to state
a claim upon which relief may be granted. (Doc. 15). The First Amended Complaint was
dismissed without prejudice and Fulford was instructed that if he wanted to pursue his
claims, he must file a Second Amended Complaint on or before February 3, 2022. He was
warned that failure to file an amended complaint would result in dismissal of his case.
This deadline has now passed, and Fulford has not submitted an amended
complaint or sent any further communication to the Court. This case is therefore subject
to dismissal.
Federal Rule of Civil Procedure 41(b) provides for dismissal of an action “[i]f the
plaintiff fails to prosecute or to comply with these rules or a court order[.]” The Court
finds that Fulford has failed to prosecute his claims. Accordingly, this action shall be
dismissed with prejudice for failure to prosecute. See FED. R. CIV. P. 41(b).
DISPOSITION
IT IS HEREBY ORDERED that this action is DISMISSED with prejudice
pursuant to Federal Rule of Civil Procedure 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). All pending motions are DENIED AS MOOT.
Because Fulford’s complaint was dismissed for failure to state a claim upon which
relief may be granted, the Court counts this dismissal as one of his three allotted “strikes”
within the meaning of 28 U.S.C. § 1915(g).
Fulford is ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed. Therefore, the remainder of the $350.00 filing fee
remains due and payable. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467
(7th Cir. 1998).
If Fulford wishes to appeal the dismissal of his 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 must set forth the issues Fulford plans to
present on appeal. See FED. R. APP. P. 24(a)(1)(C). If Fulford 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). 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 is DIRECTED to close the case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: April 11, 2022
/s/Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge