Opinion
CIVIL NO. 19-514-SMY
09-18-2019
TIMOTHY HOBECK, B89855, Plaintiff, v. DAVID RAIN, et al Defendants.
ORDER DISMISSING CASE YANDLE, District Judge :
On May 16, 2019, Plaintiff was ordered to either pay the full filing fee of $400.00 for this action or file a motion to proceed without prepayment within 30 days. (Doc. 3). Plaintiff did not respond. The Court then entered an Order directing Plaintiff to either pay his filing fee or submit a properly completed Motion to Proceed In Forma Pauperis ("IFP") no later than September 10, 2019, and warning Plaintiff that the failure to do so would result in dismissal of this case (Doc. 4). The date to pay the full filing fee has passed, and Plaintiff has made no payment, nor has he submitted a Motion to Proceed IFP.
Therefore, this action is DISMISSED without prejudice for Plaintiff's failure to comply with an Order of this Court. See FED. R. CIV. P. 41(b); 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 Robinson Correctional Center upon entry of this Order.
All pending motions are DENIED as moot. The Clerk's Office is DIRECTED to close this case.
IT IS SO ORDERED.
DATED: September 18, 2019
s/ STACI M. YANDLE
United States District Judge