Davenport v. Barwick et al

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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JUSTIN M. DAVENPORT,
Plaintiff,
vs.
CHRISTINE BROWN,
Defendant,
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Case No. 3:25-cv-01822-GCS
MEMORANDUM & ORDER
SISON, Magistrate Judge:
On March 9, 2026, the Court directed Plaintiff Justin Davenport to pay an initial
partial filing fee of $49.91 within thirty days to proceed with this case. (Doc. 15). Plaintiff
moved 	to 	reconsider 	this 	decision. 	(Doc. 	19). 	The 	Court 	denied 	the 	motion 	for
reconsideration but extended Plaintiff’s deadline to pay to April 27, 2026. (Doc. 22). The
Court then extended Plaintiff’s deadline to pay once more, to July 13, 2026. (Doc. 27, 28).
Plaintiff did not pay by the deadline. On August 20, 2026, the Court directed Plaintiff to
pay the fee or demonstrate that he has no means to pay by September 10, 2026. (Doc. 32).
Plaintiff did not respond. On September 16, 2026, the Court issued a Show Cause Order
requiring Plaintiff to show cause by September 30, 2026, explaining why he has not paid
or demonstrating that he has no means to pay. (Doc. 34). On the same date, Defendant
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Christine Brown filed a motion to dismiss this case for lack of prosecution. (Doc. 35). As
of the date of this order, Plaintiff has not responded to the Show Cause Order or to the
motion to dismiss. Plaintiff has not participated in this case since filing a notice of change
of address on July 21, 2026. (Doc. 29).
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. 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)).
Plaintiff has failed to follow Court Orders by failing to pay his initial partial filing
fee, failing to comply with the Court’s Order dated August 20, 2026, directing Plaintiff to
pay his initial filing fee or demonstrate that he had no means to do so, and failing to
respond to the Court’s Show Cause Order dated September 16, 2026. The Court has more
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than 175 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 GRANTS Defendant’s Motion to Dismiss for Lack
of Prosecution and 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). (Doc. 35). 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.
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) 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
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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
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.
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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: October 13, 2026.
_____________________________
GILBERT C. SISON
United States Magistrate Judge
Gilbert C
Sison
Digitally signed by
Gilbert C Sison
Date: 2026.10.13
11:15:20 -05'00'
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