Shelton v. Watson
ORDER DISMISSING CASE: The Court DISMISSES without prejudice this action pursuant to Rule 41(b). See Fed. R. Civ. Proc. 41(b). The case is CLOSED, and the Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Magistrate Judge Gilbert C. Sison on 1/19/2023. (kbh)
Case 3:20-cv-01150-GCS Document 81 Filed 01/19/23 Page 1 of 5 Page ID #377
THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Case No. 3:20-cv-01150-GCS
MEMORANDUM & ORDER
SISON, Magistrate Judge:
This matter is before the Court sua sponte for case management purposes. Plaintiff
Shelton’s case challenges the conditions of his pretrial confinement in St. Clair County
Jail pursuant to 42 U.S.C. §1983. (Doc. 1). The Initial Scheduling Order for the case issued
by Judge J. Phil Gilbert on March 31, 2022, mistakenly noted that Plaintiff had been
assessed and paid a $402.00 filing fee. (Doc. 42). The Revised Scheduling Order issued by
the Court on October 17, 2022, corrected this error and indicated that Plaintiff should pay
his partial filing fee of $8.85 on or before December 12, 2022. (Doc. 76). Plaintiff failed to
do so. On December 28, 2022, the Court issued a Show Cause Order directing Plaintiff to
pay his partial filing fee of $8.85 or to demonstrate that he did not have the means to pay
this amount on or before January 11, 2023. (Doc. 80). Plaintiff was warned that failure to
follow the Show Cause Order may result in the dismissal of his case. Id.
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Federal Rule of Civil Procedure 41(b) provides that “[i]f the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant may move to
dismiss the action or any claim against it.” In dismissing a case for lack of prosecution,
the Seventh Circuit has indicated that a district court commits legal error “when it
dismisses a suit ‘immediately after the first problem, without exploring other options or
saying why they would not be fruitful.’” Sroga v. Huberman, 722 F.3d 980, 982 (7th Cir.
2013)(quoting Johnson v. Chi. Bd. of Educ., 718 F.3d 731, 732-733 (7th Cir. 2013)). The
Seventh Circuit has suggested that in addition to warning the plaintiff, the court must
consider essential factors such as “the frequency and egregiousness of the plaintiff’s
failure to comply with other deadlines, the effect of the delay on the court’s calendar, and
the prejudice resulting to the defendants.” Id. (citing Kruger v. Apfel, 214 F.3d 784, 786-787
(7th Cir. 2000)).
As of this date, Plaintiff has failed to respond to the Court’s Show Cause Order.
While the Court is cognizant of the fact that Plaintiff is proceeding pro se and was recently
released on parole from Menard Correctional Center, those difficulties do not excuse
Plaintiff from complying with court-imposed deadlines. See IDOC Offender Search,
January 18, 2023); (Doc. 79). Further, the Court has approximately 90 cases on its docket,
and if the Court permits this case to drag on further waiting for Plaintiff to respond, it
will detrimentally impact the efficient and timely handling of its other cases. Accordingly,
the Court DISMISSES without prejudice this action pursuant to Rule 41(b). See FED. R.
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CIV. PROC. 41(b); see generally James v. McDonald’s Corp., 417 F.3d 672, 681 (7th Cir. 2005).
The case is CLOSED, and the Clerk of Court is DIRECTED to enter judgment
In an abundance of caution, and noting Plaintiff’s pro se status, the Court informs
Plaintiff as follows. Plaintiff has two means of contesting this Order: he may either
request this Court review this Order, or he may appeal the Order to the Seventh Circuit
Court of Appeals.
If Plaintiff chooses to request this Court to review the Order, he should file a
motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e).
Plaintiff must file the motion within twenty-eight (28) days of the entry of judgment; the
deadline cannot be extended. See FED. R. CIV. PROC. 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. See Elustra v. Mineo, 595 F.3d 699, 707 (7th Cir.
2010); Talano v. Northwestern Med. Faculty Foundation, 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)(stating that a
party must establish either manifest error of law or fact, or that newly discovered
evidence precluded entry of judgment in order to prevail on a Rule 59(e) motion) (citation
and internal quotation marks omitted).
So long as the Rule 59(e) motion is in proper form and timely submitted, the 30day clock for filing a notice of appeal will be tolled. See FED. R. APP. PROC. 4(a)(4). The
clock will start anew once the undersigned rules on the Rule 59(e) motion. See FED. R. APP.
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PROC. 4(a)(1)(A), (a)(4), (a)(4)(B)(ii). However, if the Rule 59(e) motion is filed outside the
28-day deadline or “completely devoid of substance,” the motion will not toll the time
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–
820 (7th Cir. 1977). Again, this deadline can be extended only on a written motion by
Plaintiff showing excusable neglect or good cause.
In contrast, if Plaintiff chooses to go straight to the Seventh Circuit, he must file a
notice of appeal from the entry of judgment or order appealed from within 30 days. See
FED. R. APP. PROC. 4(a)(1)(A) (emphasis added). 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. See FED. R. APP. PROC. 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).
Plaintiff may appeal to the Seventh Circuit by filing a notice of appeal in this Court.
See FED. R. APP. PROC. 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. See FED. R. APP.
PROC. 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”). See FED. R. APP. PROC. 24(a)(1).
The IFP motion must set forth the issues Plaintiff plans to present on appeal. See FED. R.
APP. PROC. 24(a)(1)(C).
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IT IS SO ORDERED.
by Judge Sison 2
GILBERT C. SISON
United States Magistrate Judge
DATED: January 19, 2023.
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