McCarter v. Marks et al

Filing 30

ORDER GRANTING 29 Motion for Sanctions. 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 accordingly. Signed by Judge Nancy J. Rosenstengel on 10/31/2017. (jkb2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JEREMIAH MCCARTER,
Plaintiff,
vs.
PATTI MARKS and
SCOTT LOVELACE,
Defendants.

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Case No. 3:16-CV-00124-NJR-RJD

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pending before the Court is a Motion for Sanctions (Doc. 29) filed by Defendants
Patti Marks and Scott Lovelace. 1 For the reasons set forth below, the Court grants the
Motion for Sanctions and dismisses this action with prejudice.
On 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).

Defendant Lovelace was identified by Plaintiff as “Scotti Lovers” in the Complaint, but he
appeared through counsel noting that his name is in fact Scott Lovelace (see Doc. 17). The Clerk
of Court is DIRECTED to note this change on the docket sheet.

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On 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.
Federal 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 sanction.
For 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 accordingly.
Finally, out of an abundance of caution, the Court advises McCarter as follows. If

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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.
If 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 standard).
On the 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 & 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).

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So long 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.
If 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).
IT IS SO ORDERED.
DATED: October 31, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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