Yoder v. David et al

Filing 185

ORDER dismissing case with prejudice for failure to prosecute. Signed by Judge Stephen P. McGlynn on 3/5/2025. (dpb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES DOUGLAS YODER,
#A97771,
Plaintiff,
v.

Case No. 21-CV-01385-SPM

ALFONSO DAVID, et al.,
Defendants.

MEMORANDUM AND ORDER
McGLYNN, District Judge:
On November 1, 2024, Defendants Wexford Health Sources, Inc., Alfonso
David, and Brandon Edwards filed their motion for summary judgment (Doc. 168).
On November 18, 2024, Defendant Daniel Monti filed his motion for summary
judgment (Doc. 174). Pursuant to Local Rule 7.1(b)(1)(A), Plaintiff had thirty days
from the date of service to file a response to each motion. See SDIL-LR 7.1(b)(1)(A).
On January 17, 2025, this Court allowed Plaintiff up to and including February 7,
2025, to file responses to the motions for summary judgment. (Doc. 179). Plaintiff did
not respond to either motion. Thus, the Court issued a Show Cause Order directing
Plaintiff to respond in writing as to why his case should not be dismissed with
prejudice for failure to prosecute the case on or before March 3, 2025. (Doc. 180). As
of this date, Plaintiff has not responded to the Show Cause Order.
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
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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. Chicago Bd. of Educ., 718 F.3d 731, 732733 (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)).
Here, Plaintiff failed to respond to the motion for summary judgment and
failed to respond the Court’s Show Cause Order. The Court has many 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 with prejudice this action pursuant to
Rule 41(b). See FED. R. CIV. P. 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 accordingly.
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.
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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. 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. See Elustra v. Mineo, 595 F.3d 699, 707
(7th Cir. 2010); Talano v. Northwestern Medical 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
30-day clock for filing a notice of appeal will be tolled. See FED. R. APP. P. 4(a)(4). The
clock will start anew once the undersigned rules on the Rule 59(e) motion. See FED.
R. APP. P. 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, 819–20 (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
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days. See FED. R. APP. P. 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. 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 University, 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. P. 3(a). The current cost of filing an appeal with the Seventh
Circuit is $605.00. The filing fee is due at the time the notice of appeal is filed. See
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”). See FED. R.
APP. P. 24(a)(1). The IFP motion must set forth the issues Plaintiff plans to present
on appeal. See FED. R. APP. P. 24(a)(1)(C).
IT IS SO ORDERED.
DATED:

March 5, 2025
s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge

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