Davis v. Leposky et al

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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEANDRE K. DAVIS,
Plaintiff,
vs.
GARRET LEPOSKY,
and
BRIAN EVINGER,
Defendant.
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Case No. 3:24-cv-01717-GCS
MEMORANDUM & ORDER
SISON, Magistrate Judge:
On December 10, 2025, Defendants filed a motion for summary judgment. (Doc.
59). As a result of Plaintiff’s failure to respond to the motion for summary judgment, the
Court, on January 14, 2026, directed Plaintiff to respond to the motion on or before
February 11, 2026. (Doc. 61). The Court also warned Plaintiff that the failure to respond
may result in the Court dismissing the case for failure to prosecute. Id. As of February 11,
2026, Plaintiff did not respond to the motion for summary judgment. Hence, the Court
issued a Show Cause Order directing Plaintiff to Show Cause in writing why his case
should not be dismissed for failure to prosecute. (Doc. 62). As of this date, Plaintiff has
not responded to the Show Cause Order and has not responded to the motion for
summary judgment.
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, 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)).
Here, Plaintiff failed to follow Court Orders by failing to respond to the Court’s
Show Cause Order dated January 13, 2026, (Doc. 62), and the Court’s Order dated January
14, 2026, ordering Plaintiff to respond to the summary judgment motion. (Doc. 61). The
Court has 160 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. C IV. P ROC. 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. C IV. P ROC. 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. A PP. P ROC. 4(a)(4). The
clock will start anew once the undersigned rules on the Rule 59(e) motion. See FED. R. A PP.
P ROC. 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. A PP . P ROC. 4(a)(1)(A) (emphasis added). The deadline can be extended for a short
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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 F ED. R. A PP. P ROC. 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. A PP. P ROC. 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. A PP .
P ROC. 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. A PP. P ROC. 24(a)(1).
The IFP motion must set forth the issues Plaintiff plans to present on appeal. See FED. R.
A PP. P ROC. 24(a)(1)(C).
IT IS SO ORDERED.
DATED: 	March 18, 2026.
__________________________________
GILBERT C. SISON
United States Magistrate Judge
Digitally signed by
Judge Sison
Date: 2026.03.18
13:11:37 -05'00'
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