United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL, CHIEF U.S. DISTRICT JUDGE
Emanuel Merriwether filed this pro se civil rights
action pursuant to 42 U.S.C. § 1983 in September 2016,
when he was an inmate in the custody of the Illinois
Department of Corrections (“IDOC”). On June 15,
2018, the Court appointed counsel from Sidley Austen LLP to
represent Merriwether (Doc. 118). On November 19, 2018,
counsel amended Merriwether's complaint and added
additional allegations related to Merriwether's
Monell claims (Doc. 148). Thereafter, the parties
engaged in a significant amount of discovery.
was released from IDOC custody in August 2018, and he stopped
communicating with counsel in September 2019 (Doc. 204). On
October 31, 2019, the Sidley firm moved to withdraw as
counsel for Merriwether, citing the fact that they had been
unable to make contact with Merriwether since September 27,
2019 (Id.). On November 1, 2019, Magistrate Judge
Gilbert C. Sison ordered Merriwether and the Sidley firm to
appear by telephone for a hearing as to the motion to
withdraw on December 4, 2019 (Doc. 206). Merriwether failed
to appear at this hearing. Thus, Judge Sison granted the
Sidley firm's motion to withdraw and ordered Merriwether
to respond within twenty-one days, to notify the Court of his
intent to appear pro se or to obtain alternate
counsel (Doc. 211).
December 10, 2019, Judge Sison followed up with a Show Cause
Order, ordering Merriwether to show cause in writing by
December 26, 2019, why this matter should not be dismissed
due to his failure to abide by the Court's order and for
want of prosecution (Doc. 212). Judge Sison specifically
warned Merriwether that his failure to respond to the show
cause order will result in his case being dismissed with
prejudice (Doc. 212, p. 2). The Clerk's Office mailed
Merriwether a copy of this order to his last known address.
He filed nothing in response to both orders.
have asked the Court to sanction Merriwether by dismissing
this case with prejudice pursuant to Federal Rule of Civil
Procedure 37(b)(1) due to Merriwether's abandonment of
his case despite Defendants expending an extraordinary amount
of time and resources responding to the Monell
discovery (Doc. 221). Defendants further suggest that the
Court dismiss the case with prejudice pursuant to Rule 41(b)
Court sees no reason to allow time for Merriwether to respond
to the motion for sanctions, as he has already missed the
deadline to comply with the Court's show cause order, and
thus dismissal is appropriate at this time.
the Court is mindful of the difficulties prisoners face in
proceeding pro se, those difficulties do not excuse
Merriwether from complying with deadlines, following the
direct Orders of the Court, or maintaining basic
communication with the Court and his counsel. “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 at the
present time is appropriate. Defendants' motion for
sanctions (Doc. 221) is GRANTED. This action
is DISMISSED with prejudice pursuant to
Federal Rule of Civil Procedure 41(b) for 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.
an abundance of caution, the Court advises Merriwether as
follows. If Merriwether 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.
Merriwether 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)(B). The deadline can be extended for a short time
only if Merriwether 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 Merriwether 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 & 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 Merriwether showing
excusable neglect or good cause.
Merriwether 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
Merriwether 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
Merriwether plans to present on appeal. See Fed. R.
App. P. 24(a)(1)(C).