Smotherman v. John Doe #1 et al

Filing 57

MEMORANDUM AND ORDER. Signed by Judge J. Phil Gilbert on 2/21/2017. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SANCHEZ SMOTHERMAN,
Plaintiff,
vs.

Case No. 13-cv-638-JPG-SCW

DON HUMPHREY, LEVI BRIDGES and
PHILLIP MCLAURIN,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff Sanchez Smotherman’s pro se motion to
reopen this case in light of his counsel’s failure to file a Fourth Amended Complaint identifying
the unknown defendants in a timely matter, which caused the Court to dismiss this case for lack of
prosecution (Doc. 47). Defendant Rick Watson responded to the motion, arguing that the Court
should not reopen the case because it is old, Smotherman has had enough time to file an amended
pleading, and the statute of limitations has passed without any reason for tolling it (Doc. 50). The
Court also considers Smotherman’s appointed counsel’s motion for leave to belatedly file the
Fourth Amended Complaint (Doc. 54). He represented in a February 8, 2017, telephone status
conference and again in his motion that his failure to file an amended pleading was inadvertent.
The decision whether to reopen this case is governed by Rule 60(b). It is well settled that
Rule 60(b) relief is an extraordinary remedy and is granted only in exceptional circumstances.
McCormick v. City of Chi., 230 F.3d 319, 327 (7th Cir. 2000) (citing Dickerson v. Board of Educ.,
32 F.3d 1114, 1116 (7th Cir. 1994)). Rule 60(b) allows a court “to address mistakes attributable
to special circumstances and not merely to erroneous applications of law.” Russell v. Delco Remy
Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995). The rule authorizes a Court to grant

relief from judgment for the specific reasons listed in the rule but does not authorize action in
response to general pleas for relief. See Young v. Murphy, 161 F.R.D. 61, 62 (N.D. Ill. 1995).
Rule 60(b)(1) allows a court to reopen a case that was closed because of inadvertence or
excusable neglect. Excusable neglect can include omissions through an attorney’s carelessness
and mistake. Robb v. Norfolk & Western Ry., 122 F.3d 354, 359 (7th Cir. 1997) (attorney’s
negligence in meeting summary judgment briefing deadline may be excusable neglect) (citing In
re Bulic, 997 F.2d 299, 302 (7th Cir. 1993)); see Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.,
507 U.S. 380, 388-89 (1993). A court should determine whether an attorney’s neglect is
excusable by weighing the equities, taking into account all of the relevant circumstances.
Pioneer, 507 U.S. at 395; In re Bulic, 997 F.2d at 302. The court has discretion to determine
whether neglect is excusable. Robb, 122 F.3d at 361.
The Court finds the dismissal of Smotherman’s case was due to his counsel’s excusable
neglect. Counsel was appointed solely to conduct discovery to identify the unknown defendants
and to amend Smotherman’s pro se pleading. He conducted that discovery and some settlement
negotiations. He neglected, however, to timely amend Smotherman’s complaint. The Court
finds it would be inequitable to allow the dismissal to stand in light of the fact that it was not
Smotherman’s fault, there is no evidence Smotherman ever acted in bad faith, Smotherman did not
select his own counsel so he has less reason to be forced to suffer from his counsel’s errors, and
allowing this case to remain dismissed after the statute of limitations has run would likely doom
Smotherman’s claims even though they were dismissed without prejudice. The Court is aware
that the passage of time means memories of witnesses may have faded and that the defendants are
entitled to a timely end to this case. Nevertheless, on balance, the Court finds it more appropriate
to reopen this case to decide it on its merits (or on other procedural bases).

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Therefore, the Court:


GRANTS Smotherman’s motion to reopen this case (Doc. 47);



VACATES the order and judgment terminating this case (Docs. 45 & 46);



DIRECTS the Clerk of Court to reopen this case;



GRANTS Smotherman’s motion for leave to amend the complaint out of time (Doc. 54);



ACCEPTS the Fourth Amended Complaint (Doc. 53) as timely filed;



DIRECTS the Clerk of Court to terminate Watson as a party to this case as he was not
named in the Fourth Amended Complaint; and



TERMINATES Smotherman’s appointed counsel in this case as contemplated by Chief
Judge Reagan when he appointed counsel only to accomplish specific tasks.
As to the newly identified unknown defendants, the Clerk of Court is DIRECTED to

prepare a waiver of summons as to defendants DON HUMPHREY, LEVI BRIDGES and
PHILLIP MCLAURIN. Thus, as to defendants HUMPHREY, BRIDGES and MCLAURIN
the Clerk of Court shall prepare: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service
of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to
mail these forms, a copy of the Fourth Amended Complaint (Doc. 53), the threshold order (Doc.
30), and this Memorandum and Order to the defendants’ place of employment as identified by
Plaintiff. If a defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the
Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to
effect formal service on the defendant, and the Court will require the defendant to pay the full costs
of formal service, to the extent authorized by the Federal Rules of Civil Procedure.
With respect to a defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the defendant’s current work address, or, if not
known, the defendant’s last-known address. This information shall be used only for sending the

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forms as directed above or for formally effecting service. Any documentation of the address shall
be retained only by the Clerk. Address information shall not be maintained in the court file or
disclosed by the Clerk.
Plaintiff shall serve upon defendants (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on defendants or counsel. Any paper received
by a district judge or magistrate judge that has not been filed with the Clerk or that fails to include
a certificate of service will be disregarded by the Court.
Defendants HUMPHREY, BRIDGES and MCLAURIN are ORDERED to timely file
an appropriate responsive pleading to the complaint and shall not waive filing a reply pursuant to
42 U.S.C. § 1997e(g).
Further, pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States
Magistrate Judge Stephen C. Williams for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Williams for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties
consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding that his
application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give security
for the same, the applicant and his or her attorney were deemed to have entered into a stipulation

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that the recovery, if any, secured in the action shall be paid to the Clerk of the Court, who shall pay
therefrom all unpaid costs taxed against plaintiff and remit the balance to Plaintiff. Local Rule
3.1(c)(1).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of
Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7 days
after a transfer or other change in address occurs. Failure to comply with this order will cause a
delay in the transmission of court documents and may result in dismissal of this action for want of
prosecution. See Fed. R. Civ. P. 41(b).
IT IS SO ORDERED.
DATED: February 21, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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