McClendon v. Watson ( 2019 )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS LEANDRE MCCLENDON, Y26451, ) ) Plaintiff, ) ) vs. ) CIVIL NO. 19-469-JPG ) RICHARD WATSON, et al ) ) Defendants. ) ) ) MEMORANDUM AND ORDER GILBERT, District Judge: On May 8, 2019, Plaintiff’s Motion for Leave to Proceed in forma pauperis (“IFP”) was denied and Plaintiff was given a deadline of June 7, 2019 to pay the $400 filing fee for this action (Doc. 7). Plaintiff was clearly warned in that Order that failure to pay the full filing fee of $400.00 would result in dismissal of this case. On July 11, 2019, Plaintiff was granted an extension of time to pay the $400 filing fee no later than August 12, 2019 (Doc. 12). To date, Plaintiff has not paid the filing fee for this case. As a result, this action is DISMISSED without prejudice, for failure to comply with an Order of this Court. FED. R. CIV. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994). This dismissal shall NOT count as one of Plaintiff’s three allotted “strikes” under 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 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, the agency shall begin forwarding monthly payments of 20% of the preceding month’s income credited to Plaintiff’s trust fund account (including all deposits to the inmate account from any source) until the statutory fee of $400.00 is paid in its entirety. The agency having custody of Plaintiff shall forward payments from Plaintiff’s account to the Clerk of Court each time the Plaintiff’s account exceeds $10.00 until the $400.00 filing fee is paid. Payments shall be mailed to: Clerk of the Court, United States District Court for the Southern District of Illinois. The Clerk is DIRECTED to mail a copy of this Order to the Trust Fund Officer at the Lawrence Correctional Center upon entry of this Order. The Clerk’s Office is DIRECTED to close this case. IT IS SO ORDERED. DATED: August 27, 2019 s/J. Phil Gilbert United States District Judge 2