United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL, United States District Judge
matter is before the Court on Defendants Angel Rector,
Angelia Bruns, and Dr. Vipin Shah's Motion to Dismiss
(Doc. 32). For the reasons set forth below, the motion is
Robel Gebrai, a former inmate of the Illinois Department of
Corrections (“IDOC”), filed this lawsuit pursuant
to 42 U.S.C. § 1983 alleging his constitutional rights
were violated while he was incarcerated at Pinckneyville
Correctional Center (“Pinckneyville”).
Gebrai's complaint alleges that Defendants were
deliberately indifferent to his serious eye condition.
after his complaint was filed, Gebrai filed a Notice of
Change of Address advising the Court that he would be paroled
on September 16, 2016, and his address should be updated to
2N252 Amy Avenue, Glen Ellyn, Illinois 60137 (Doc. 12).
Gebrai's address was timely updated in the Court's
docketing system. The Court has not received any filings from
Gebrai subsequent to his Notice of Change of Address.
December 22, 2016, Defendants Bruns, Rector, and Shah filed a
motion to compel indicating Gebrai failed to respond to their
written discovery served on October 18, 2016, related to the
question of exhaustion (see Doc. 22). Defendants
asked the Court for an order compelling Gebrai to provide
responses. Defendants' motion was granted, and the Court
ordered Gebrai to provide responses to Defendants'
written discovery originally served on October 18, 2016-by
February 22, 2017. The Court warned Gebrai that “his
failure to comply with this Order and provide said responses
may result in the imposition of sanctions, including
dismissal of his claims against Defendants” (Doc. 28).
Bruns, Rector, and Shah filed a motion for summary judgment
on the issue of exhaustion on February 13, 2017 (Doc. 29).
Plaintiff failed to file a response and, in light of this
failure, the Court cancelled the hearing set pursuant to
Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) (Doc.
33). On March 16, 2017, Defendants Bruns, Rector, and Shah
filed the motion to dismiss now before the Court. Gebrai has
not filed a response to the motion, despite being provided
ample time and opportunity to do so.
Rule of Civil Procedure 41(b) provides for involuntary
dismissal 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,
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.
on a review of the record and upon consideration of the
applicable law, the Court dismisses this action for failure
to prosecute. First, Gebrai has exhibited disregard for court
orders. In particular, Gebrai was ordered to respond to
Defendants' written discovery on the issue of exhaustion
by February 22, 2017. Defendants assert, and Gebrai has not
contradicted their assertion, that Gebrai wholly failed to
respond to their discovery requests in contravention of the
Court's order. The Court also notes that Gebrai has
failed to respond to Defendants' motion for summary
judgment and motion to dismiss. Further, Gebrai failed to pay
his initial partial filing fee of $39.95 by the deadline of
February 3, 2017. Gebrai was warned that his failure to do so
may result in dismissal of this action (see Doc. 23,
Court finds that the conduct described above demonstrates a
clear record of delay and contumacious conduct that has
needlessly prolonged this litigation. While the Court
acknowledges Gebrai has been paroled since September 2016,
such circumstance does not excuse his failure to litigate
this matter and respond to Court orders. Significantly, there
is no indication that any of the Court's mailings have
been returned ...