Cross v. Ziolkowski et al

Filing 59

MEMORANDUM AND ORDER, the Court DENIES Plaintiff's Motion to Reopen the Case (Doc. 56 ). Accordingly, because the case is now closed and because of the absence of any remaining significant or unresolved issues, the Court also DENIES Plaintiff's Motion for Recruitment of Counsel (Doc. 58 ). Signed by Judge J. Phil Gilbert on 11/7/2017. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ALI L. CROSS,
Plaintiff,
v.
CHRISTOPHER ZIOLKOWSKI, et al.,

Case No. 3:16-cv-00651-JPG-RJD

Defendants.
MEMORANDUM & ORDER
J. PHIL GILBERT, DISTRICT JUDGE
Before the Court is Plaintiff’s Motion to Reopen the Case and Motion to Appoint
Counsel. (Docs. 56, 58.) Plaintiff was formerly in custody at Chester Mental Health Center. On
June 15, 2015, Plaintiff filed this action pursuant to 42 U.S.C. § 1983, alleging that Defendants
violated his constitutional rights.

(Doc. 1.)

On November 15, 2016, the Court screened

Plaintiff’s First Amended Complaint and allowed Plaintiff to proceed on Fourteenth Amendment
claims of excessive force and deliberate indifference to his serious medical needs.

(Doc. 15.)

The screening order also included the following:
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.
(Id. at 13.) On February 15, 2017, the Court received as undeliverable several filings that had
previously been mailed to Plaintiff. (Docs. 42, 43.) On March 15, 2017, the Court ordered
Plaintiff to show cause as to why this case should not be dismissed for failure to maintain a
current address and warned Plaintiff that failure to respond to the show cause order could result

in dismissal. (Doc. 45.) On April 18, 2017, the Court dismissed the case without prejudice for
failure to prosecute and entered judgment in favor of Defendants. (Docs. 51, 52.)
On October 2, 2017, Plaintiff filed the instant motion, requesting that the Court reopen
this case. (Doc. 56.) Because Plaintiff filed the motion more than 28 days after the entry of
judgment, the Court construes the motion under Federal Rule of Civil Procedure 60(b). See
Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008). Rule 60(b) permits a court to relieve a
party from an order or judgment based on such grounds as mistake, surprise or excusable neglect
by the movant; fraud or misconduct by the opposing party; a judgment that is void or has been
discharged; or newly discovered evidence that could not have been discovered within the 28-day
deadline for filing a Rule 59(b) motion. FED. R. CIV. P. 60(b)(1).
Here, the only arguable ground to vacate the order of dismissal is excusable neglect. In
an affidavit, Plaintiff details his mental health issues, hospitalization, and incarceration. but does
not indicate that these conditions prevented him from notifying the Court of his address issue.
Although those conditions may have reasonably accounted for some delay, the Court declines to
vacate judgment without a satisfactory explanation for why the notice was delayed by eight
months. Moreover, Plaintiff advised the Court regarding his change of address on five occasions
prior to the entry of judgment, demonstrating his awareness of his duty to maintain a current
address with the Court. (See Docs. 14, 20, 21, 25, 34.) In sum, Plaintiff has failed to show
excusable neglect or any other grounds to reopen his case.
For the foregoing reasons, the Court DENIES Plaintiff’s Motion to Reopen the Case
(Doc. 56).

Accordingly, because the case is now closed and because of the absence of any

remaining significant or unresolved issues, the Court also DENIES Plaintiff’s Motion for
Recruitment of Counsel (Doc. 58).

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IT IS SO ORDERED.
DATED: November 7, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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