United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge
matter is before the Court on the Report and Recommendation
of United States Magistrate Judge Donald G. Wilkerson (Doc.
39), which recommends dismissing this case with prejudice for
failure to prosecute and finding as moot Defendant Bharat
Shah's Motion for Summary Judgment.
Omar McGhee (“McGhee”), a former inmate in the
Illinois Department of Corrections, filed this pro
se lawsuit pursuant to 42 U.S.C. § 1983, alleging
that his constitutional rights were violated. After an
initial screening of McGhee's complaint pursuant to 28
U.S.C. § 1915A, McGhee was allowed to proceed on one
count of deliberate indifference against Defendant Shah (Doc.
January 7, 2016, McGhee filed a notice with the Court,
indicating that he had been released from prison and was
residing at an address in Dolton, Illinois (Doc. 17). On May
19, 2016, Defendant Shah filed a Motion for Summary Judgment
arguing that McGhee had failed to exhaust his administrative
remedies prior to filing suit (Doc. 28). Along with the
motion, Defendant Shah filed a notice informing McGhee of the
consequences of failing to respond to the motion (Doc. 30).
Because McGhee failed to respond to the motion within the
allotted time, Magistrate Judge Wilkerson sua sponte
granted McGhee additional time, until July 29, 2016, to file
a response (Doc. 31). McGhee filed his response on July 25,
2016 (Doc. 33). Thereafter, Magistrate Judge Wilkerson set a
Pavey Evidentiary Hearing for September 22, 2016
(Doc. 35). In Magistrate Judge Wilkerson's Order setting
the hearing, McGhee was “ADVISED that his appearance is
MANDATORY and WARNED that his failure to appear may result in
sanctions, including dismissal of this lawsuit.” (Doc.
35). McGhee failed to appear at the hearing on September 22,
2016 (See Doc. 38).
September 26, 2016, Magistrate Judge Wilkerson issued the
Report and Recommendation currently before the Court (Doc.
39), recommending dismissal of the case for failure to
prosecute. Objections to the Report and Recommendation were
due on or before October 14, 2016. See 28 U.S.C.
§ 626(b)(1); Fed.R.Civ.P. 72(b)(2); SDIL-LR73.1(b).
McGhee did not file an objection.
timely objections are filed, this Court must undertake a
de novo review of the Report and Recommendation. 28
U.S.C. § 636(b)(1)(B), (C); Fed.R.Civ.P. 72(b); SDIL-LR
73.1(b); Harper v. City of Chicago Heights, 824
F.Supp. 786, 788 (N.D. Ill. 1993); see also Govas v.
Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). Where
neither timely nor specific objections to the Report and
Recommendation are made, however, this Court need not conduct
a de novo review of the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985). Instead, the
Court should review the Report and Recommendation for clear
error. Johnson v. Zema Systems Corp., 170 F.3d 734,
739 (7th Cir. 1999). A judge may then “accept, reject,
or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1).
Court has reviewed Magistrate Judge Wilkerson's Report
and Recommendation for clear error. Following this review,
the Court fully agrees with the findings, analysis, and
conclusions of Magistrate Judge Wilkerson. McGhee failed to
attend the Pavey hearing, despite Magistrate Judge
Wilkerson's order to do so and despite being warned that
such failure may result in dismissal of the lawsuit. McGhee
did not file a motion to continue the hearing, he did not
contact the Court to indicate that he was unable to attend
the hearing, and he has had no contact with Defendant Shah.
This comes after Magistrate Judge Wilkerson graciously
allowed McGhee to file a late response to the pending motion
for summary judgment. Due to McGhee's failure to appear
at the hearing, Magistrate Judge Wilkerson is unable to make
necessary credibility determinations related to the pending
motion for summary judgment. Additionally, the Court has
received no indication that McGhee has not been receiving
orders and notices of the Court. In light of this, the
undersigned agrees with Magistrate Judge Wilkerson's
assessment that McGhee is unreasonably delaying this matter
and that such actions prejudice Defendant Shah.
the undersigned finds it appropriate to dismiss this case for
failure to prosecute pursuant to Rule 41(b). Accordingly, the
Court ADOPTS Magistrate Judge Wilkerson's Report and
Recommendation (Doc. 39) in its entirety and FINDS AS MOOT
Defendant Shah's Motion for Summary Judgment (Doc. 28).
This case is DISMISSED with prejudice for failure to
prosecute pursuant to Rule 41(b). Judgment will be entered
 Defendant Ron Vitale remained in the
case in his official capacity as warden only (Id.).
On July 18, 2016, this Defendant was dismissed with ...