United States District Court, S.D. Illinois
G. WILKERSON United States Magistrate Judge
pending before the Court is the Motion to Dismiss for
Plaintiff's Failure to Prosecute filed by Defendants
Wexford Health Sources, Inc., (“Wexford”), James
Fenoglio, M.D., Vipin Shah, M.D., Mark Baker, D.O., Christine
Brooks, and Elaine Hardy-Burcham (“Wexford
Defendants”) (Doc. 119). For the reasons set forth
below, the Motion to Dismiss is GRANTED.
December 9, 2013, Plaintiff, through retained counsel, filed
his complaint pursuant to 42 U.S.C. § 1983 alleging his
constitutional rights were violated while he was in the
custody of the Illinois Department of Corrections
(“IDOC”), incarcerated at Lawrence Correctional
Center (“Lawrence”). More specifically,
Plaintiff's complaint alleges that medical and prison
staff members at Lawrence were deliberately indifferent in
failing to provide surgery for Plaintiff's inguinal
hernia (See Docs. 1 and 69).
September 21, 2015, counsel for Plaintiff sought leave to
withdraw from this matter citing a telephone conversation in
which Plaintiff informed counsel that he no longer wished to
be represented by him or his firm (See Doc. 103).
The Court took counsel's motion to withdraw under
advisement, directing Plaintiff to file a response to said
motion stating whether he agreed with counsel's
representations (See Doc. 104). Plaintiff was
advised that if counsel was allowed to withdraw from this
matter he was under an obligation to obtain new counsel
within 21 days or he would be proceeding pro se
(Id.). Plaintiff never filed a response to the
motion to withdraw and, as such, it was granted on November
10, 2015 (See Doc. 109). No attorney has filed a
notice of appearance on behalf of Plaintiff since his former
counsel was allowed to withdraw.
Baker, Brooks, Fenoglio, Hardy-Burcham, Shah, and Wexford
filed a motion for summary judgment on November 16, 2015
(Doc. 111) and Defendants Godinez and Hodge filed a motion
for summary judgment on January 11, 2016 (Doc. 117).
Plaintiff's responses to Defendants' motions were due
on December 21, 2015 and February 16, 2016, respectively.
Subsequently, Defendants Baker, Brooks, Fenoglio,
Hardy-Burcham, Shah, and Wexford filed the motion to dismiss
for lack of prosecution that is now before the Court (Doc.
119). Plaintiff's response to this motion was due April
16, 2016, the Court ordered Plaintiff to show cause why his
failure to meet Court deadlines, including failing to file
responses to Defendants' motions for summary judgment,
should be excused (See Doc. 125). Plaintiff filed a
response to the Court's show cause order on July 14,
2016, explaining that his incarceration has limited his
ability to obtain “the proper paperwork” and
obtain new counsel (Doc. 126). Although Plaintiff's
response was meager, the Court accepted Plaintiff's
response and, sua sponte, granted Plaintiff an
extension of time, up to and including August 12, 2016, to
file his responses to Defendants' motions for summary
judgment. On August 12, 2016, Plaintiff filed a motion to
continue the trial date, which was moot as the trial date was
vacated in March, 2016, while the Court was awaiting a
response to Defendants' motions for summary judgment
(See Docs. 124 and 131). As of the date of this
Order, Plaintiff has not filed a response to Defendants'
motions for summary judgment or the Wexford Defendants'
motion to dismiss.
Rule of Civil Procedure 41(b) provides for involuntary
dismissal of an action for failure to prosecute an action or
to comply with court orders. Pursuant to Rule 41(b), an
action may be dismissed “when there is a clear record
of delay or contumacious conduct, or when other less drastic
sanctions have proven unavailing.” Maynard v.
Nygren, 332 F.3d 462, 467 (7th Cir. 2003) (quoting
Williams v. Chicago Bd. Of Educ., 155 F.3d 853, 857
(7th Cir. 1998) (other citations omitted). The Seventh
Circuit has identified several factors a court should
consider before entering an involuntary dismissal, including:
the frequency of the plaintiff's failure to comply with
deadlines; whether the responsibility for mistakes is
attributable to the plaintiff herself or to the
plaintiff's lawyer; the effect of the mistakes on the
judge's calendar; the prejudice that the delay caused to
the defendant; the merit of the suit; and the consequences of
dismissal for the social objectives that the litigation
represents. Aura Lamp & Lighting Inc. v. Int'l
Trading Corp., 325 F.3d 903, 908 (7th Cir. 2003).
dismissal is left up to the discretion of District Courts,
said Courts are strongly encouraged to provide an explicit
warning before a case is dismissed; especially where the
litigant is pro se. Fischer v. Cingular
Wireless, LLC, 446 F.3d 663, 665 (7th Cir. 2006);
see also In re Bluestein & Co., 68 F.3d 1022,
1025 (7th Cir. 1995).
on a review of the record and upon consideration of the
applicable law, it is recommended that this action should be
dismissed for failure to prosecute. First, Plaintiff has
exhibited disregard for court orders. In particular,
Plaintiff was directed to file a response to his former
counsel's motion to withdraw, but failed to do so.
Moreover, Plaintiff has failed to file responses to
Defendants' pending motions for summary judgment and
motion to dismiss, despite being provided ample time,
opportunity, and notice. Indeed, Plaintiff has not engaged in
litigation in any meaningful way since counsel was allowed to
withdraw in November, 2015. Accordingly, Defendants'
dispositive motions have remained pending for a significant
period of time (over eight months), with no response from
Plaintiff. Due to Plaintiff's abject failure to
substantively engage in this litigation, follow this
Court's directions, and provide responses to the pending
dispositive motions, the Court finds that Defendants would be
prejudiced if this matter were to proceed at this point.
While the Court notes there are lesser sanctions available,
such sanctions would be unavailing as it appears that
Plaintiff has lost interest in litigating this matter. For
the above-mentioned reasons, and after consideration of the
relevant factors cited by the Seventh Circuit regarding
involuntary dismissal, the Court finds that there has been a
clear record of delay and contumacious conduct in this matter
and dismissal is warranted pursuant to Rule 41(b).
reasons set forth above, Defendant Baker, Brooks, Fenoglio,
Hardy-Burcham, Shah, and Wexford's Motion to Dismiss for
Failure to Prosecute (Doc. 119) is GRANTED; Defendant Baker,
Brooks, Fenoglio, Hardy-Burcham, Shah, and Wexford's
Motion for Summary Judgment (Doc. 111) is MOOT; and Defendant
Godinez and Hodge's Motion for Summary Judgment (Doc.
117) is MOOT. This case is DISMISSED WITH PREJUDICE. The
Clerk of Court ...