United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge
Leonard Smock filed this pro se civil rights action
pursuant to 42 U.S.C. § 1983 and the Americans with
Disabilities Act in June 2015, when he was an inmate in the
custody of the Illinois Department of Corrections
(“IDOC”). Defendants served Plaintiff with
discovery requests related to the exhaustion of his
administrative remedies on June 16, 2016 (Docs. 54-1 and
54-2). Plaintiff's deadline for responding was July 19,
2016 (see Doc. 54). Fed.R.Civ.P. 33, 34. A month and
a half after the deadline had passed, Plaintiff still had not
responded to the discovery requests, so Defendants filed a
motion to compel (Doc. 54). Magistrate Judge Donald Wilkerson
granted the motion to compel and ordered Plaintiff to respond
to the discovery requests by September 26, 2016 (Doc. 58).
Magistrate Judge Wilkerson also warned Plaintiff that he may
be subject to sanctions, including the dismissal of his case,
if he failed to comply with the Court's Order (Doc. 58).
Once again, this deadline passed without a response from
Plaintiff. Because of Plaintiff's failure to respond to
their discovery requests, Defendants have asked the Court to
sanction Plaintiff by dismissing this case (Doc. 62).
Plaintiff did not filed a response to the motion or otherwise
oppose the request to dismiss this case.
addition to missing the original discovery deadline and the
extended deadline set by the Court, it is also worth noting
that Plaintiff missed the deadline set by the Court for
identifying an unnamed Defendant (see Doc. 50, 60,
63). On each of these occasions where Plaintiff failed to
respond to a deadline, a Court Order, or a motion from
Defendants, Plaintiff made no effort to contact the Court
about problems he was having or to request an extension of
time, even though he was informed that he could do so (Doc.
57). In fact, at this point, the Court has not heard from
Plaintiff in any capacity for over five months.
Court is mindful of the difficulties prisoners face in
proceeding pro se, as well as the additional
obstacles Plaintiff faced when he was paroled from prison
(see Doc. 52). Those difficulties, however, do not
excuse Plaintiff from complying with deadlines, following the
direct Orders of the Court, or maintaining basic
communication with the Court. “Once a party invokes the
judicial system by filing a lawsuit, it must abide by the
rules of the court; a party cannot decide for itself when it
feels like pressing its action and when it feels like taking
a break . . . .” James v. McDonald's
Corp., 417 F.3d 672, 681 (7th Cir. 2005).
these reasons, the Court is convinced that dismissal is an
appropriate action. Defendants' motion for sanctions
(Doc. 62) is GRANTED. This action is DISMISSED with prejudice
pursuant to Federal Rules of Civil Procedure 37(b) and (d)
and 41(b) for failure to respond to discovery requests,
failure to comply with an Order of the Court, and failure to
prosecute. The Clerk of Court is DIRECTED to enter judgment
and close this case on the Court's docket.
Plaintiff wishes to contest this Order, he has two options.
He can ask the Seventh Circuit to review the Order, or he can
first ask the undersigned to reconsider the Order before
appealing to the Seventh Circuit.
Plaintiff chooses to go straight to the Seventh Circuit, he
must file a notice of appeal within 30 days from the
entry of judgment or order appealed from. Fed. R. App. P.
4(a)(1)(A). The deadline can be extended for a short time
only if Plaintiff files a motion showing excusable neglect or
good cause for missing the deadline and asking for an
extension of time. Fed. R. App. P. 4(a)(5)(A), (C). See
also Sherman v. Quinn, 668 F.3d 421, 424 (7th Cir. 2012)
(explaining the good cause and excusable neglect standards);
Abuelyaman v. Illinois State Univ., 667 F.3d 800,
807 (7th Cir. 2011) (explaining the excusable neglect
other hand, if Plaintiff wants to start with the undersigned,
he should file a motion to alter or amend the judgment under
Federal Rule of Civil Procedure 59(e). The motion
must be filed within twenty-eight (28) days of the
entry of judgment, and the deadline cannot be
extended. Fed.R.Civ.P. 59(e); 6(b)(2). The motion must also
comply with Rule 7(b)(1) and state with sufficient
particularity the reason(s) that the Court should reconsider
the judgment. Elustra v. Mineo, 595 F.3d 699, 707
(7th Cir. 2010); Talano v. Nw. Med. Faculty Found.,
Inc., 273 F.3d 757, 760 (7th Cir. 2001). See also
Blue v. Hartford Life & Acc. Ins. Co., 698 F.3d 587,
598 (7th Cir. 2012) (“To prevail on a Rule 59(e) motion
to amend judgment, a party must clearly establish (1) that
the court committed a manifest error of law or fact, or (2)
that newly discovered evidence precluded entry of
judgment.”) (citation and internal quotation marks
as the Rule 59(e) motion is in proper form and timely
submitted, the 30-day clock for filing a notice of appeal
will be stopped. Fed. R. App. P. 4(a)(4). The clock will
start anew once the undersigned rules on the Rule 59(e)
motion. Fed. R. App. P. 4(a)(1)(A), (a)(4), (a)(4)(B)(ii). To
be clear, if the Rule 59(e) motion is filed outside the
28-day deadline or “completely devoid of substance,
” the motion will not stop the clock for filing a
notice of appeal; it will expire 30 days from the entry of
judgment. Carlson v. CSX Transp., Inc., 758 F.3d
819, 826 (7th Cir. 2014); Martinez v. Trainor, 556
F.2d 818, 819-20 (7th Cir. 1977). Again, this deadline can be
extended only on a written motion by Plaintiff showing
excusable neglect or good cause.
Court has one more bit of instruction regarding the appeals
process. If Plaintiff chooses to appeal to the Seventh
Circuit, he can do so by filing a notice of appeal in this
Court. Fed. R. App. P. 3(a). The current cost of filing an
appeal with the Seventh Circuit is $505.00. The filing fee is
due at the time the notice of appeal is filed. Fed. R. App.
P. 3(e). If Plaintiff cannot afford to pay the entire filing
fee up front, he must file a motion for leave to appeal
in forma pauperis (“IFP motion”) along
with a recent statement from his prison trust fund account.
See Fed. R. App. P. 24(a)(1)(C). The IFP motion must
set forth the issues Plaintiff plans to present on appeal.
See Fed. R. App. P. 24(a)(1)(C). If he is allowed to
proceed IFP ...