Case: Bertha v. Kane County

Bertha v. Kane County, et al

Bertha v. Kane County, et al

Bertha V. Kane County, Et Al

Bertha v. Kane County, et al

Bertha v. Clint Hull, et al

Bertha v. Clint Hul, et al

RECEIVED Complaint and 9 copies by David A Bertha (pj, ) (Entered: 02/13/2020)

CIVIL Cover Sheet (pj, ) (Entered: 02/13/2020)

PRO SE Appearance by Plaintiff David A Bertha (pj, ) (Entered: 02/13/2020)

APPLICATION by Plaintiff David A Bertha for leave to proceed in forma pauperis (pj, ) (Entered: 02/13/2020)

NOTICE TO THE PARTIES - The Court is participating in the Mandatory Initial Discovery Pilot (MIDP). The key features and deadlines are set forth in this Notice which includes a link to the (MIDP) Standing Order and a Checklist for use by the parties. In cases subject to the pilot, all parties must respond to the mandatory initial discovery requests set forth in the Standing Order before initiating any further discovery in this case. Please note: The discovery obligations in the Standing Order supersede the disclosures required by Rule 26(a)(1). Any party seeking affirmative relief must serve a copy of the following documents (Notice of Mandatory Initial Discovery and the Standing Order) on each new party when the Complaint, Counterclaim, Crossclaim, or Third-Party Complaint is served. (pj, ) (Entered: 02/13/2020)

ORDER Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on March 16, 2020. All open cases are impacted by this Amended General Order. See attached Order for guidance.Signed by the Honorable Rebecca R. Pallmeyer on 3/16/2020: Mailed notice. (ecw, ) (Entered: 03/18/2020)

ORDER Seconded Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on March 30, 2020. All open cases are impacted by this Second Amended General Order. Amended General Order 20-0012, entered on March 17, 2020, and General Order 20-0014, entered on March 20, 2020, are vacated and superseded by this Second Amended General. See attached Order for guidance.Signed by the Honorable Rebecca R. Pallmeyer on 3/30/2020: Mailed notice. (docket12, ) (Entered: 03/31/2020)

ORDER Third Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on April 24, 2020. All open cases are impacted by this Third Amended General Order. Parties are must carefully review all obligations under this Order, including the requirement listed in paragraph number 5 to file a joint written status report in most civil cases. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 4/24/2020: Mailed notice. (docket8, ) (Entered: 04/27/2020)

ORDER ORDER Fourth Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on May 26, 2020. This Order does not extend or modify any deadlines set in civil cases. For non-emergency motions, no motion may be noticed for presentment on a date earlier than July 15, 2020. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 5/26/2020: Mailed notice. (docket9, ) (Entered: 05/26/2020)

ORDER Fifth Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on July 10, 2020. This Order does not extend or modify any deadlines set in civil cases. No motions may be noticed for in-person presentment; the presiding judge will notify parties of the need, if any, for a hearing by electronic means or in-court proceeding. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 7/10/2020: Mailed notice. (Clerk8, Docket) (Entered: 07/10/2020)

ORDER :This matter is before the Court on Plaintiff's application for leave to proceed in forma pauperis 4 . For the reasons explained below, Plaintiff's application for leave to proceed in forma pauperis 4 is granted and the filing fee is waived; however, the Court will not appoint counsel at this time. The Court appoints the U.S. Marshal to serve Defendants Hull, Cowlin, Boles, Doherty, Malott, Wood, and Conklin using the USM-285 forms that Plaintiff has filed on the docket. Summons shall not issue to any other named Defendants at this time; Kane County and Hain are dismissed from this action without prejudice. Signed by the Honorable Robert M. Dow, Jr on 3/29/2021. Mailed notice(mc, ) (Entered: 03/29/2021)

COMPLAINT filed by David A Bertha.(gcy, ) (Entered: 10/20/2021)

WAIVER OF SERVICE returned executed, William Wood waiver sent on 10/13/2021, answer due 12/13/2021. (gcy, ) (Entered: 10/20/2021)

SUMMONS Issued to the U.S. Marshals with a certified copy of the order dated 3/29/21 and the received USM-285 6 as to Defendants Susan Clancy Boles, Charles Conklin, James Cowlin, Eugene Doherty, Clint Hul, Richard Malott, William Wood (mc, )

WAIVER OF SERVICE returned executed, Charles Conklin waiver sent on 10/13/2021, answer due 12/13/2021. (Attachments: # 1 USM-285)(gcy, ) (Entered: 10/20/2021)

WAIVER OF SERVICE returned executed, Richard Malott waiver sent on 10/13/2021, answer due 12/13/2021. (gcy, ) (Entered: 10/20/2021)

WAIVER OF SERVICE returned executed, Susan Clancy Boles waiver sent on 10/13/2021, answer due 12/13/2021. (Attachments: # 1 USM-285)(gcy, ) (Entered: 10/20/2021)

WAIVER OF SERVICE returned executed Clint Hul waiver sent on 10/13/2021, answer due 12/13/2021. (gcy, ) (Entered: 10/20/2021)

ATTORNEY Appearance for Defendant Eugene Doherty by Kelly C. Bauer (Bauer, Kelly) (Entered: 11/12/2021)

WAIVER OF SERVICE returned executed by Eugene Doherty. Eugene Doherty waiver sent on 10/13/2021, answer due 12/13/2021. (Bauer, Kelly) (Entered: 11/12/2021)

ATTORNEY Appearance for Defendants Charles Conklin, Richard Malott, William Wood by Kathleen K. Watson (Attachments: # 1 Notice of Filing)(Watson, Kathleen) (Entered: 11/29/2021)

MOTION by Defendant Eugene Doherty for extension of time to file answer or other responsive pleading by December 17, 2021 (Bauer, Kelly) (Entered: 12/10/2021)

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendants Charles Conklin, Richard Malott, William Wood (Attachments: # 1 Notice of Filing)(Watson, Kathleen) (Entered: 12/13/2021)

1 Notice of Filing

View on RECAP

MINUTE entry before the Honorable Robert M. Dow, Jr: Motion of Defendant Chief Judge Doherty for extension of time to answer or otherwise plead 23 is granted to and including 12/17/2021. Emailed notice (cdh, ) (Entered: 12/13/2021)

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendant Eugene Doherty, MOTION by Defendant Eugene Doherty to dismiss for lack of jurisdiction (Bauer, Kelly) (Entered: 12/17/2021)

WITHDRAWING Assistant Attorney General Kelly C. Bauer as counsel for Defendant Eugene Doherty and substituting Sarah Hughes Newman as counsel of record (Newman, Sarah) (Entered: 01/18/2022)

ORDER: In view of the notice of substitution of counsel 27 filed on 1/18/2022, Assistant Attorney General Kelly Bauer is withdrawn as counsel Defendant Chief Judge Eugene Doherty. Signed by the Honorable Robert M. Dow, Jr on 1/18/2022. Mailed notice (jn, ) (Entered: 01/19/2022)

MOTION by Defendant Eugene Doherty to substitute attorney (Jones, Margaret) (Entered: 04/06/2022)

ORDER: Motion for substitution of attorney 29 is granted. Attorney Maggie Jones is substituted for Attorney Sarah Newman on behalf of Defendant Doherty. Defendants' motions to dismiss [24, 26] are taken under advisement; responses are due by 5/12/2022; replies are due by 6/2/2022. The Court will issue rulings by mail. Signed by the Honorable Robert M. Dow, Jr on 4/7/2022. Mailed notice (jn, ) (Entered: 04/07/2022)

ORDER: For the reasons stated below, the motions to dismiss filed by Defendants Malott, Conklin, and Wood 24 and by Defendant Doherty 26 are granted. The claims against all judicial officer Defendants Doherty, Hull, Cowlin, and Boles are dismissed with prejudice as each is entitled to judicial immunity. In an abundance of caution, the claims against the Kane County Sheriff's Office employees Malott, Conklin, and Wood and the County itself are dismissed without prejudice. Although the Court is skeptical that Plaintiff could successfully replead his claims against the County and the Sheriff's Office employees, Plaintiff is given until October 12, 2022 to file a motion for leave to file an amended complaint along with an attached proposed amended complaint if he believes that he can state a plausible claim consistent with Federal Rule of Civil Procedure 11 and this opinion. If Plaintiff does not timely file a motion for leave to file an amended complaint or if any such motion is denied, the dismissal of the claims against the County and the Sheriff's Office employees will be converted to with prejudice and a final judgment will be entered. Signed by the Honorable Robert M. Dow, Jr on 9/12/2022. Mailed notice. (kl, ) (Entered: 09/12/2022)

EXECUTIVE COMMITTEE ORDER: The Honorable Robert M. Dow Jr. has been appointed Counselor to the Chief Justice of the United States. As he takes on these responsibilities, the court will at this time reassign a portion of his civil and criminal cases. IT IS HEREBY ORDERED That the cases on the attached list are to be reassigned to the other judges of this Court as indicated, pursuant to Local Rule 40.1(f). Case reassigned to the Honorable Franklin U. Valderrama for all further proceedings. Honorable Robert M. Dow, Jr no longer assigned to the case. Signed by Honorable Rebecca R. Pallmeyer on 10/11/2022. (lxk, ) (Entered: 10/11/2022)

MINUTE entry before the Honorable Franklin U. Valderrama: Plaintiff was given until 10/12/2022 to file a motion for leave to file an amended complaint if he believed he could state a plausible claim against the County and the Sheriff's Office employees. See R. 31. To date, Plaintiff has not filed a motion for leave to file an amended complaint. Therefore, consistent with Judge Dow's previous order 31, Plaintiff's claims against the County and the Sheriff's Office employees are dismissed with prejudice. All pending deadlines are hereby stricken. Civil case terminated. Mailed notice (axc). (Entered: 10/14/2022)

ENTERED JUDGMENT on 10/14/2022. Mailed notice (axc). (Entered: 10/14/2022)

MAILED copy of Minute Entry 33 and Judgment in a Civil Case 34 to Plaintiff David A Bertha. (axc).

MOTION to vacate dismissal Order filed by Plaintiff David A. Bertha; Notice. (jh, ) (Entered: 11/16/2022)

MINUTE entry before the Honorable Franklin U. Valderrama: The Court sets the following briefing schedule on Plaintiff's Motion to Vacate Dismissal Order 35 as follows: Defendants' responses due by 12/14/2022; Plaintiff's reply due by 12/28/2022. Mailed notice (axc). (Entered: 11/21/2022)

MAILED copy of Minute Entry 36 to Plaintiff David A Bertha. (axc).

RESPONSE by Eugene Dohertyin Opposition to MOTION by Plaintiff David A Bertha to vacate 35 (Jones, Margaret) (Entered: 12/14/2022)

RESPONSE by Charles Conklin, Kane County, Richard Malott, William Woodin Opposition to MOTION by Plaintiff David A Bertha to vacate 35 (Attachments: # 1 Notice of Filing)(Watson, Kathleen) (Entered: 12/14/2022)

CERTIFICATE of Service by Margaret Jones on behalf of Eugene Doherty regarding response in opposition to motion 37 (Jones, Margaret) (Entered: 12/15/2022)

MINUTE entry before the Honorable Franklin U. Valderrama: The Court grants Plaintiff's Motion to Vacate Dismissal Order ("Motion") 35 . Plaintiff brought this action against Defendants Kane County and its employees Richard Malott, Charles Conklin, and William Wood (together "the Kane County Defendants") as well as Defendants Judge Susan Clancy Boles, Judge James Cowlin, Judge Clint Hull, and Chief Judge Eugene Doherty (together "the Judge Defendants") for violating his civil rights under 42 U.S.C. § 1983. The then presiding district court dismissed all claims with prejudice against the Judge Defendants under absolute judicial immunity 31 . The district court also dismissed all claims without prejudice against the Kane County Defendants, allowing Plaintiff 30 days to file an amended complaint, at which time if no complaint was filed, the Kane County Defendants would be dismissed with prejudice. Id. By the 30 days, Plaintiff had not filed an amended complaint. This Court, upon being assigned the case, dismissed the Kane County Defendants with prejudice, terminating the case 33 . Plaintiff then filed this Motion under Federal Rule of Civil Procedure 60(b). A Rule 60(b) motion "is to be used to disturb the finality of judgments only on narrow grounds and upon a showing of exceptional circumstances." McNeela v. United Airlines, Inc., 17 F. App'x 407, 409 (7th Cir. 2001). A court, under Rule 60(b), may vacate a final judgment, order, or proceeding for "mistake, inadvertence surprise, or excusable neglect." Fed. R. Civ. P. 60(b). Ultimately, it is at the discretion of the district court whether to grant a motion to reconsider. Helm v. Resol. Tr. Corp., 84 F.3d 874, 877 (7th Cir. 1996) ("Rule 60(b) provides a district court with the discretion to afford relief from a judgment or order under certain circumstances."); see McCormick v. City of Chicago, 230 F.3d 319, 327 (7th Cir. 2000) ("[W]e have described a court's decision not to reinstate a case under Rule 60(b) as 'discretion piled on discretion.'"). Plaintiff argues that he did not receive notice of the Kane County Defendants' motion to dismiss, the Court's Order, or that his in forma pauperis application was granted 35 . And because Plaintiff filed the Motion within 30 days of final judgment, his failure to respond to the Order is "excusable neglect" warranting reconsideration under Rule 60(b)(1). Id. Considering the circumstances, the Court, in its discretion, is satisfied with Plaintiff's explanation that he did not receive notice. The case is reinstated. On or before 10/30/2023, Plaintiff shall file an amended complaint that is compliant with the district court's 9/12/2022 order 31 . All claims against the Judge Defendants remain dismissed with prejudice. Plaintiff is reminded that "[e]ven pro se litigants must follow the rules." Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir. 2002); see United States v. $9,171.00 United States Currency, 2019 WL 2996930, at *2 (S.D. Ind. June 21, 2019), report and recommendation adopted, 2019 WL 2995319 (S.D. Ind. July 9, 2019) ("These standards set for counsel are expected of pro se litigants. Although pro se litigants get the benefit of more generous treatment in some respects, they must nonetheless follow the same rules of procedure that govern other litigants."). Therefore, pro se litigants have an "affirmative duty to examine the docket for up-to-date entries." Sparks Tune-Up Centers, Inc. v. Cummings Sign, 1992 WL 77750 at *1 (N.D. Ill. Apr. 2, 1992). Failure to comply with the Court's orders may result in sanctions, including dismissal. Mailed notice (lp, ) (Entered: 09/30/2023)

MINUTE entry before the Honorable Franklin U. Valderrama: On 9/30/2023, the Court granted Plaintiff's motion to vacate dismissal order 35 and directed Plaintiff to file an amended complaint consistent with the previously assigned Judge's Order 31 by 10/30/2023. The Court advised Plaintiff that failure to comply with the Court's orders may result in dismissal 40 . To date, the Court has not received an amended complaint or any other filings or documents from Plaintiff. Therefore, this case is dismissed without prejudice for failure to comply with Court orders and for want of prosecution. Fed. R. Civ. P. 41(b); see Lankowsky v. City of Chicago, 2015 WL 4868619, at *2 (N.D. Ill. Aug. 13, 2015) (citing Easley v. Kirmsee, 382 F.3d 693, 698 (7th Cir. 2004)); Jackson v. City of Chicago, 2004 WL 2958771, *4 (Nov. 19, 2004). Civil case terminated.Mailed notice (mjc, ) (Entered: 11/09/2023)