Oliver v. Butler et al

Filing 59

ORDER DISMISSING CASE. This action is DISMISSED with prejudice pursuant to Rule 41(b) for failure to prosecute. Signed by Judge Nancy J. Rosenstengel on 2/7/2019. (jmp2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL OLIVER,

)
)
Plaintiff,
)
)
vs.
)
)
KIMBERLY BUTLER, MAJOR LYERLA, )
and SERGEANT SCOTT,
)
)
Defendants.
)

Case No. 17-CV-206-NJR-MAB

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
On January 14, 2019, Magistrate Judge Beatty issued a Show Cause Order,
ordering Plaintiff Michael Oliver to show cause in writing by February 4, 2019, why this
matter should not be dismissed due to his failure to prosecute this action (Doc. 56). Judge
Beatty also warned Oliver that his failure to respond to the Order will result in his case
being dismissed. The Clerk’s Office mailed Oliver a copy of this Order to his last known
address. He filed nothing in response.
Accordingly, this action is DISMISSED with prejudice pursuant to Rule 41(b).
The Clerk of Court is DIRECTED to enter judgment accordingly.
Out of an abundance of caution, the Court advises Oliver as follows. If Oliver
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 Oliver 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 Oliver 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 Oliver 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).
So long as the Rule 59(e) motion is in proper form and timely submitted, the 60day 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 28day 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 Oliver
showing excusable neglect or good cause.
If Oliver 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 Oliver 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 Oliver 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 6, 2019
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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