UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ANTWYN BOWIE, ) ) Plaintiff, ) ) vs. ) Case No. 3:21-cv-00205-GCS ) KIMBERLY BIRCH ) and ) DARLA SPAIN, ) ) Defendants. )

MEMORANDUM & ORDER

SISON, Magistrate Judge: On February 11, 2022, the Court set this matter for telephone status conference on March 8, 2022 at 1:00 p.m. (Doc. 48). Thereafter, on March 8, 2022, due to a conflict in the Court’s schedule, the Court canceled the March 8, 2022 telephone status conference. (Doc. 49). On March 10, 2022, the Court reset the matter for telephone status conference on March 24, 2022 at 11:00 a.m. (Doc. 50). Both notices from the Court informed Plaintiff that “the failure to attend may result in the dismissal of his case for failure to follow court orders and prosecute his case.” See (Doc. 48, 50). On March 24, 2022, the Court held the telephone status conference, and Bowie failed to appear. (Doc. 51). Thus, the Court issued a Show Cause Order directing Plaintiff to explain in writing his failure to prosecute this case and warned him that the failure to respond would result in the dismissal with

Page 1 of 5 prejudice of his case. (Doc. 52). As of this date, Plaintiff has not responded to the Show Cause Order.1

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,

(7th Cir.

2013)(quoting Johnson v. Chi. Bd. of Educ.,

(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.”

(citing Kruger v. Apfel,

(7th Cir. 2000)). Plaintiff has not responded to the Court’s Show Cause Order of March 24, 2022. The deadline of April 14, 2022 for responding to the aforementioned Order has now passed. (Doc. 52). The Court has many cases on its docket, and if the Court permits this

1 The record reflects that Bowie is no longer incarcerated at Robinson Correctional Center and that Bowie has failed to update his address with the Court; mail sent by opposing counsel has likewise been returned. (Doc. 53). The Court notes that in October 2021, Bowie updated his change of address from Stateville Correctional Center to Robinson Correctional Center and asked that all correspondence be sent to Robinson Correctional Center. (Doc. 40). The Court also notes that included in that change of address Bowie included a home address in Bollingbrook, Illinois. After the March 24, 2022 Show Cause hearing, the Court sent documents 48-52 to Plaintiff to the Bollingbrook, Illinois address.

Page 2 of 5 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. PROC. 41(b); see generally James v. McDonald’s Corp.,

(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 advises 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 this 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 also must

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,

(7th Cir. 2010); Talano v. Nw. Med. Faculty Found., Inc.,

(7th Cir. 2001). See also Blue v. Hartford Life & Acc. Ins. Co.,

(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).

Page 3 of 5 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. PROC. 4(a)(4). The

clock will start anew once the undersigned rules on the Rule 59(e) motion. See FED. R. APP. 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.,

(7th Cir. 2014); Martinez v. Trainor,

, 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,

(7th Cir. 2012)(explaining the good cause and excusable neglect standards); Abuelyaman v. Illinois State Univ.,

(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

Page 4 of 5 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). IT IS SO ORDERED. Digitally signed . _ .by Judge Sison 2 DATED: April 25, 2022. Aine 0. Sa )o099.04.95 15:04:58 -05'00' GILBERT C. SISON United States Magistrate Judge

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