United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE.
before the Court is a Motion for Sanctions (Doc. 29) filed by
Defendants Patti Marks and Scott Lovelace. For the reasons
set forth below, the Court grants the Motion for Sanctions
and dismisses this action with prejudice.
February 3, 2016, Jeremiah McCarter filed this lawsuit
pursuant to 42 U.S.C. § 1983 for incidents alleged to
have occurred while he was confined at Choate Mental Health
Center in Anna, Illinois. (Doc. 1). On June 21, 2016, Mr.
McCarter notified the Court he had been discharged from
custody and provided the Court with his new address in
Chicago. (Doc. 14). A deposition of McCarter was scheduled
for August 4, 2017, and notice of the deposition was sent to
the address McCarter provided to the Court. (Doc. 22, p. 1).
When McCarter failed to appear for the deposition, Defendants
filed a Motion to Compel Discovery. (Doc. 22).
August 23, 2017, Magistrate Judge Reona J. Daly granted
Defendants' motion and ordered McCarter to contact
Defendants' counsel and make himself available for
deposition. (Doc. 25). Magistrate Judge Daly further warned
McCarter that failure to make himself available for
deposition could result in this matter being dismissed for
failure to prosecute. (Doc. 25). McCarter failed to contact
Defendants' counsel to schedule a deposition by the court
ordered deadline. (Doc. 29, p. 2). The Court has likewise
heard nothing from McCarter for months.
Rule of Civil Procedure 37(b)(2)(A) permits a court to
sanction a party for not obeying a discovery order, including
dismissal of the action. Fed.R.Civ.P. 37(b)(2)(A)(v). The
Court is mindful of the difficulties prisoners face in
proceeding pro se, as well as the additional
obstacles McCarter likely faced when he was paroled from
prison. Those difficulties, however, do not excuse a
plaintiff from complying with deadlines, following the
Court's direct orders, 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). The Court finds that McCarter
has failed to obey a direct order of this Court and that
dismissal of this action with prejudice is an appropriate
these reasons, Defendants' Motion for Sanctions is
GRANTED, and this action is DISMISSED with
prejudice. The case is CLOSED, and the Clerk of
Court is DIRECTED to enter judgment
out of an abundance of caution, the Court advises McCarter as
follows. If he wishes to contest this Order, McCarter 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.
McCarter chooses to go straight to the Seventh Circuit, he
must file a notice of appeal within 60 days from the
entry of judgment or order appealed from. Fed. R. App. P.
4(a)(1)(B). The deadline can be extended for a short time
only if McCarter 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 McCarter 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 also must
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 & Ace. 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 60-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 60 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 McCarter showing excusable
neglect or good cause.
McCarter 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
McCarter cannot afford to pay the entire filing fee up front,
he must file a motion for leave to appeal in forma
pauperis ("IFP motion"). See Fed. R.
App. P. 24(a)(1). The IFP motion must set forth the issues
McCarter plans to present on appeal. See Fed. R.
App. P. 24(a)(1)(C). If he is allowed to proceed IFP on
appeal, he will be assessed an initial partial filing fee. 28
U.S.C. § 1915(b)(1). He will then be required to make
monthly payments until the entire filing fee is paid. 28
U.S.C. § 1915(b)(2).
IS SO ORDERED.