Hollins v. Godinez et al

Filing 27

ORDER GRANTING 25 Motion to Dismiss. This matter is DISMISSED with prejudice pursuant to Rule 41(b). The Clerk of Court is DIRECTED to enter judgment and close this case on the Court's docket. Signed by Judge Nancy J. Rosenstengel on 2/8/16. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CIJAE HOLLINS,
Plaintiff,
vs.
DU QUOIN IMPACT
INCARCERATION PROGRAM
SUPERINTENDENT and
UNKNOWN PARTY 4,
Defendants.

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Case No. 14-CV-1306-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Cijae Hollins filed this pro se civil rights action pursuant to 42 U.S.C.
§ 1983 in November 2014, when he was an inmate in the custody of the Illinois
Department of Corrections (“IDOC”). In his complaint, he alleged that IDOC officials at
various facilities violated his constitutional rights. The Court conducted a threshold
review of his complaint and reduced Plaintiff’s case to a single count of excessive force
that occurred on August 29, 2014, when Unknown Party 4, a correctional officer at the
Du Quoin Impact Incarceration Program, hit Plaintiff on the back of head causing
injuries (Doc. 9). The Superintendent of the Du Quoin Impact Incarceration Program was
named as a defendant, in his or her official capacity only, for the sole purpose of
identifying Unknown Party 4 (Doc. 9).
Plaintiff was ordered to provide the Superintendent with identifying information
for Unknown Party 4 by April 23, 2015, and to file an amended complaint naming
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Unknown Party 4 by May 28, 2015 (Doc. 17). Plaintiff did not do either. On July 2, 2015,
Magistrate Judge Donald Wilkerson ordered Plaintiff to show cause why this case
should not be dismissed for want of prosecution and failure to comply with the Court’s
orders (Doc. 19). Plaintiff responded and said that the unknown officer was named in an
internal affairs complaint that was retained by the prison (Doc. 20). Plaintiff did not,
however, provide a physical description of the unknown officer (see Doc. 20). Magistrate
Judge Wilkerson gave Plaintiff one more opportunity to provide a physical description
of the unknown officer by November 6, 2015 (Doc. 22). Plaintiff was warned that if he
failed to comply with the Order, his case would be dismissed (Doc. 22). Once again,
Plaintiff failed to submit the information by the deadline, and the Superintendent filed a
motion to dismiss this matter for want of prosecution (Doc. 25), which is currently before
the Court. Plaintiff did not respond to the motion.
The Court finds that Plaintiff has failed to comply with its orders and failed to
prosecute this matter. Such actions have unreasonably delayed this matter—over a year
has gone by since this matter was filed and a defendant has yet to be named.
Consequently, this matter is DISMISSED with prejudice pursuant to Rule 41(b). FED.
R. CIV. P. 41(b); see generally James v. McDonald’s Corp., 417 F.3d 672, 681 (7th Cir. 2005).
The Clerk of Court is DIRECTED to enter judgment and close this case on the Court’s
docket.
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.

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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 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 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
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 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.

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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.
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
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 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: February 8, 2016
s/ Nancy J. Rosenstegel
NANCY J. ROSENSTENGEL
United States District Judge

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