Attaway v. Illinois et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHEAL N.B. ATTAWAY,
Y55493
Plaintiff,
vs.
ALEX WELCH, ASHLEY SHARP, and
ALFONSO DAVID, M.D.,
Defendants.
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Case No. 23-cv-2168-RJD
MEMORANDUM AND ORDER
DALY, Magistrate Judge:1
This matter comes before the Court on Plaintiff’s Motion to Change Venue (Doc. 76),
Motion to Vacate Order and Reopen Case (Doc. 77), Motion to Strike Response to Motion (Doc.
80), and Consolidated Motion to Strike Defendants’ Filings, Enter Default Judgment, Grant
Summary Judgment, and Impose Sanctions for Gross Disrespect, Fraudulent Filings, and
Procedural Violations (Doc. 81). For the reasons set forth below, all motions are DENIED, and
this case shall remain dismissed with prejudice.
Background
This case was dismissed with prejudice for want of prosecution on November 14, 2024,
after the plaintiff failed to respond to a Court Order to Show Cause. (Docs. 71, 74 & 75). The
Court explained that dismissal with prejudice under Federal Rule of Civil Procedure 41(b) was
warranted because Plaintiff had failed to comply with the Court’s orders twice and had further
1 This case has been assigned to the undersigned for final disposition upon the parties’ full consent pursuant
to 28 U.S.C. § 636(c). (Doc. 43)
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failed to appear at an evidentiary hearing on the motion for summary judgment. (Doc. 74).
Specifically, on September 30, 2024, the Court set this matter for an evidentiary hearing via Zoom
for October 22, 2024, regarding Defendant’s motion for summary judgment on the issue of
exhaustion of administrative remedies. (Doc. 62). Because Plaintiff had since been released from
the IDOC’s custody, the Court further ordered Plaintiff to provide his email address by October
11, 2024, and to further advise the Court if he had Zoom access by that same deadline. (Id.). The
Court sent Plaintiff a copy of the Order via mail to his address of record, which was not returned
undelivered. Plaintiff failed to comply with that Order and failed to appear at the evidentiary
hearing. (Doc. 70). Following Plaintiff’s failure to appear at the hearing, the Court entered an
Order to Show Cause ordering Plaintiff to file a pleading by November 12, 2024, addressing why
this case should not be dismissed with prejudice for his failure to prosecute. (Doc. 71). Plaintiff
was warned that this case would be dismissed with prejudice if he failed to comply with the Court’s
Order to Show Cause. (Id.). Plaintiff failed to respond by the set deadline, and on November 14,
2024, the Court dismissed this case with prejudice. (Doc. 74). Judgment was entered on the same
date. (Doc. 75).
Discussion
Plaintiff now argues that the judgment dismissing this case should be vacated because
financial hardship and lack of necessary resources following his release from custody prevented
him from participating in litigation. (Doc. 77). He further argues that he never received notice of
the order setting an evidentiary hearing on the Defendants’ motion for summary judgment and
directing him to provide the Court with his email address. (Id.). Plaintiff asks the Court to reopen
the case and reinstate his claims after finding that his delay in moving this matter forward
constitutes excusable neglect. (Id.). Defendants responded in opposition to the motion, to which
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Plaintiff replied. (Docs. 78 & 79).
While Plaintiff does not identify the legal basis under which he seeks to vacate the
dismissal and judgment in this case, based on the allegations in his motions, the only available
grounds are Federal Rule of Civil Procedure 59(e) or 60(b). See, e.g., Mares v. Busby, 34 F.3d 533,
535 (7th Cir. 1994). Under Rule 59(e), a court can amend or alter a judgment in “exceptional
cases” only if there is a manifest error of law or fact or if it presents newly discovered evidence
that was not previously available. Willis v. Dart, 671 Fed. App'x 376, 377 (7th Cir.
2016) (quoting Gonzalez–Koeneke v. W., 791 F.3d 801, 807 (7th Cir. 2015); Heyde v. Pittenger,
633 F.3d 512, 521 (7th Cir. 2011)). However, a challenge under Rule 59(e) motion must be filed
within 28 days of the order being challenged. Federal Rule of Civil Procedure 60(b), on the other
hand, allows for relief from judgment for “mistake, inadvertence, surprise, or excusable neglect.”
Fed. R. Civ. P. 60(b)(1).2 Relief under Rule 60(b) is an “extraordinary remedy” that should be
granted only in “exceptional circumstances.” Bakery Mach. & Fabrication, Inc. v. Traditional
Baking, Inc., 570 F.3d 845, 848 (7th Cir. 2009), cert. denied, 558 U.S. 1147 (2010).
Here, Plaintiff cannot seek relief under Rule 59(e) because his motion to vacate was filed
more than 28 days from the entry of judgment. (Docs. 74, 75, & 76). The Court also finds that
Plaintiff is not entitled to relief under Rule 60(b).
First, Plaintiff claims that he never received notice of the evidentiary hearing. However,
Plaintiff has not provided any evidentiary support for his claim. Contrary to Plaintiff’s contention,
the record shows that the Order setting the evidentiary hearing and asking Plaintiff to contact the
Court was mailed to Plaintiff’s address of record on October 1, 2024, and was not returned
2 Rule 60(b) also provides for relief from judgment on other grounds, including mistake,
inadvertence, or fraud, none of which is relevant to Plaintiff’s allegations in his motion. Fed. R.
Civ. P. 60(b)
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undelivered.
Plaintiff further asserts that he was unable to timely contact the Court and diligently
prosecute this case because, following his release from prison, he had limited resources and lacked
stable housing. Yet, Plaintiff failed to inform the Court of these issues until nearly four months
after the entry of judgment dismissing this case. Even assuming Plaintiff did not have the resources
to file a single-page document in response to the Order to Show Cause, he could have contacted
the Court via email at the address provided to him (Doc. 62) or by phone, as he has previously
done. Further, despite his claims of extreme financial hardship, Plaintiff appears to have had
sufficient resources to initiate at least five other lawsuits in this District after his release from
custody, including Case Nos. 24-1561-SPM, 24-1562-SMY, 24-1563-GCS, 24-1564-MAB, and
24-1565-SPM. See Attaway v. Talamantes, No. 23-CV-02771-JPG, 2025 WL 2840494, at *3 (S.D.
Ill. Oct. 7, 2025). Accordingly, the Court is not convinced that Plaintiff’s alleged extreme financial
hardship prevented him from timely prosecuting this action.
The Court finds that Plaintiff has not established that he is entitled to relief from judgment
under either Rule 59(e) or Rule 60(b). See Henthorn v. Fish, 2024 WL 1702894, at *2 (S.D. Ind.
Apr. 18, 2024) (Rule 60(b) offers no relief to inmate who lacked diligence in litigating claims)
(citing McLaughlin v. Jung, 959 F.2d 1310, 1312 (7th Cir. 1988)) (inmate’s own carelessness or
lack of diligence does not provide a basis for relief under Rule 60(b)). Therefore, his Motion to
Vacate (Doc. 77) is DENIED. Because there is no ground for reopening this case, Plaintiff’s
Motion to Change Venue (Doc. 76), Motion to Strike Response to Motion (Doc. 80), and
Consolidated Motion to Strike Defendants’ Filings, Enter Default Judgment, Grant Summary
Judgment, and Impose Sanctions for Gross Disrespect, Fraudulent Filings, and Procedural
Violations (Doc. 81) are DENIED as moot.
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Conclusion
Plaintiff’s Motion to Change Venue (Doc. 76), Motion to Vacate (Doc. 77), Motion to
Strike (Doc. 80), Motion to Strike Response to Motion (Doc. 80), and Consolidated Motion to
Strike Defendants’ Filings, Enter Default Judgment, Grant Summary Judgment, and Impose
Sanctions for Gross Disrespect, Fraudulent Filings, and Procedural Violations (Doc. 81)
are DENIED. This case shall remain dismissed with prejudice and is CLOSED.
IT IS SO ORDERED.
DATED: January 26, 2026
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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