Evans v. Roeckman et al

Filing 52

ORDER. Defendant's Motion to Dismiss for Want of Prosecution is GRANTED 51 . This matter is DISMISSED with prejudice. Signed by Judge Nancy J. Rosenstengel on 5/5/2016. (ceg)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT EVANS,
Plaintiff,
vs.
ZACHARY
ROECKMAN,
LT
V
JACKSON, LIEUTENANT SCHUTLER,
N NALLY, UNKNOWN PARTY, DR.
DENNIS LARSON, and LARRY TODD
MANKER,
Defendants.

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Case No.14-CV-821-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Now pending before the Court is the Motion to Dismiss for Want of Prosecution
filed by Defendant Larry Todd Manker on January 20, 2016 (Doc. 51).
FACTUAL BACKGROUND
Plaintiff Robert Evans, a former inmate in the custody of the Illinois Department
of Corrections (“IDOC”), filed this lawsuit on July 18, 2014, alleging his constitutional
rights were violated while he was incarcerated at Big Muddy River Correctional Center.
Soon after filing his complaint, the Court recruited counsel for Plaintiff, and Attorney
Jon A. Santangelo was assigned to represent Plaintiff in this matter (Doc. 16). Attorney
Santangelo, on behalf of Plaintiff, filed an amended complaint naming Larry Todd

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Manker as the sole defendant in this matter (Doc. 28). Following the entry of the
amended complaint, a scheduling order was issued.
In April 2015, Attorney Santangelo requested additional time to respond to
Defendant’s interrogatories and requests for production of documents related to the
issue of exhaustion of administrative remedies because counsel was no longer able to
reach Plaintiff by telephone (see Doc. 36). Counsel also informed the Court that Plaintiff’s
last known address and telephone number were no longer valid (Id.). The Court granted
Plaintiff additional time to respond to Defendant’s requests (Doc. 37); however, prior to
the new deadline, counsel for Plaintiff again requested an extension of time to respond
because Plaintiff was still unreachable (Doc. 38).
The Court granted Plaintiff’s motion, in part, and ordered Plaintiff to show cause
if he was unable to provide the responses by the new deadline (Doc. 39). In compliance
with the Court’s order, counsel for Plaintiff notified the Court on June 25, 2015, that he
had attempted to contact Plaintiff via telephone approximately eleven times between
April 15, 2015, and June 22, 2015, but to no avail (Doc. 40). Additionally, counsel sent a
letter via certified mail to Plaintiff’s last known address but never received a response
(Id.). Following this filing, counsel for Plaintiff filed a motion to withdraw on October 2,
2015, explaining that Plaintiff’s telephone number had been disconnected, and a letter
sent to Plaintiff via certified mail was returned as undeliverable (see Doc. 43). The Court
granted Attorney Santangelo’s motion to withdraw and advised Plaintiff that he would

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be proceeding pro se. Plaintiff was ordered to show cause, in writing, by October 30,
2015, why this matter should not be dismissed for failure to prosecute (Doc. 44). That
Order was sent to Plaintiff’s last known address via certified mail, but was returned as
undeliverable (see Doc. 45). As of the date of this Order, Plaintiff has not responded to
the Court’s Show Cause Order.
On January 20, 2016, Defendant filed the motion to dismiss now before the Court
(Doc. 51). In the motion, Defendant reiterates the posture of this case as recited above
and asks that the matter be dismissed for failure to prosecute. As of the date of this
Order, Plaintiff has not filed a response to Defendant’s motion.
DISCUSSION
Rule 41(b) of the Federal Rules of Civil Procedure provides that a defendant may
move to dismiss an action if a plaintiff fails to prosecute or comply with the Federal
Rules. Pursuant to Rule 41(b), an action may be dismissed “when there is a clear record
of delay or contumacious conduct, or when other less drastic sanctions have proven
unavailing.” Maynard v. Nygren, 332 F.3d 462, 467 (7th Cir. 2003) (quoting Williams v.
Chicago Bd. Of Educ., 155 F.3d 853, 857 (7th Cir. 1998) (other citations omitted)). Though
dismissal is left to the judge’s discretion, district courts are strongly encouraged to
provide an explicit warning before a case is dismissed; especially where the litigant is pro
se. Fischer v. Cingular Wireless, LLC, 446 F.3d 663, 665 (7th Cir. 2006); see also In re Bluestein
& Co., 68 F.3d 1022, 1025 (7th Cir. 1995).

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The circumstances presented here warrant dismissal of this action with prejudice.
Despite being assigned counsel in this matter, Plaintiff became (and remains)
unreachable since approximately April 2015. Since April 2015, Plaintiff has made no
attempt to notify the Court of any change in his address and, as such, all orders sent to
Plaintiff since counsel has been allowed to withdraw have been returned as
undeliverable (see Docs. 45 and 50). Moreover, Plaintiff has not provided any response to
Defendant’s discovery requests propounded more than a year ago, on February 24, 2015
(see Doc. 36). Because Plaintiff has contacted neither opposing counsel nor the Court, and
he has not filed any document in this matter for over a year, despite being ordered to do
so, the Court finds that Plaintiff has established a clear record of delay that justifies
dismissal pursuant to Rule 41(b).
Importantly, although Plaintiff is now proceeding pro se in this cause, and
although pro se litigants are given wide latitude, they do not enjoy “unbridled license to
disregard clearly communicated court orders,” nor are they entitled to a general
dispensation from the rules of civil procedure or court-imposed deadlines. Downs v.
Westphal, 78 F.3d 1252, 1257 (7th Cir. 1996). For the reasons set forth above, it is apparent
that Plaintiff has disregarded his obligations and is no longer interested in litigating this
matter.
CONCLUSION
The Motion to Dismiss for Lack of Prosecution filed by Defendant Larry Todd

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Manker (Doc. 51) is GRANTED, and this matter is DISMISSED with prejudice. The
Clerk of the Court is DIRECTED to enter judgment accordingly.
If 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.
If Plaintiff chooses to go straight to the Seventh Circuit, he must file a notice of
appeal within 30 days from the entry of judgment. 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 standard).
On the 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

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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 omitted).
So long as the Rule 59(e) motion is in proper form and submitted on-time, 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); Talano v. Northwestern Medical Faculty
Foundation, Inc., 273 F.3d 757, 760–61 (7th Cir. 2001); 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.
The 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
for his prison trust fund account. See FED. R. APP. P. 24(a)(1)(C). The IFP motion must set

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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 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).
IT IS SO ORDERED.
DATED: May 5, 2016
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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