United States District Court, S.D. Illinois
ROBERT E. WILLIAMS, Plaintiff,
LT. GEPHART, et al., Defendants.
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 Wilkerson (Doc. 50),
which recommends granting Defendants' motion to dismiss
for lack of prosecution and ordering Plaintiff to pay $150.00
to Defendants for costs incurred when Plaintiff failed to
appear for his deposition.
November 22, 2016, Defendants served Plaintiff with their
first notice of deposition, setting Plaintiff's
deposition for December 13, 2016. Plaintiff informed
Defendants that he could not appear on that date. On March 1,
2017, Defendants served Plaintiff with their second notice of
deposition, setting his deposition for March 17, 2017, at the
Attorney General's Office in Springfield, Illinois.
Plaintiff failed to appear for his deposition or otherwise
inform defense counsel that he would be unable to attend.
Defense counsel incurred expenses in the amount of $150.00
for the missed deposition.
still had not heard from Plaintiff by April 10, 2017, when
they filed their motion to dismiss for failure to prosecute
under Rule 41(b) of the Federal Rules of Civil Procedure
(Doc. 47). Plaintiff did not file a response to the motion to
dismiss within the thirty day timeframe. See SDIL-LR
7.1. On May 24, 2017, Magistrate Judge Wilkerson issued an
Order to Show Cause directing Plaintiff to inform the Court
by June 7, 2017, why this matter should not be dismissed and
he should not be ordered to reimburse defense counsel in the
amount of $150.00 (Doc. 49). Plaintiff was warned that the
failure to respond may result in dismissal of this action
(Doc. 49). Plaintiff did not file a response to the Order to
Show Cause by the deadline. Consequently, Magistrate Judge
Wilkerson issued the Report and Recommendation currently
before the Court, and recommended dismissing this case for
failure to prosecute and sanctioning Plaintiff in the amount
of $150.00 immediately payable to the Illinois Attorney
General (Doc. 50). Objections to the Report and
Recommendation were due on July 5, 2017. See 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2); SDIL-LR
73.1(b). Plaintiff did not file an objection.
neither timely nor specific objections to the Report and
Recommendation are made, the court need not conduct a de
novo review. 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). The court 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).
undersigned has reviewed Magistrate Judge Wilkerson's
Report and Recommendation, as well as the procedural history
of this case, and agrees with his recommendation to dismiss
this case with prejudice pursuant to Rule 41(b) for failure
to prosecute. The undersigned disagrees, however, with
Magistrate Judge Wilkerson's recommendation that
Plaintiff should be sanctioned $150.00. Plaintiff was
indigent when he filed this case (see Docs. 4, 6, 7,
10). He was released from prison during the course of this
litigation, and the undersigned would be surprised if his
financial situation improved in any significant way since his
release. Furthermore, the undersigned does not know
the specifics of why Plaintiff missed the deposition and
stopped communicating with defense counsel and the Court.
Without knowing the impact a monetary penalty would have on
Plaintiff or whether his conduct in missing the deposition
truly warrants a penalty, the Court is loath to impose such a
the Court ADOPTS in part and REJECTS in part the Report and
Recommendation (Doc. 50). Defendants' motion to dismiss
(Doc. 47) is GRANTED, and this action is DISMISSED with
prejudice pursuant to Rule 41(b) for failure to prosecute.
The Court declines to order Plaintiff to pay Defendants
$150.00 for costs incurred when Plaintiff failed to appear
for his deposition.
See, e.g., David J.
Harding, et al., Making Ends Meet After Prison, 33
J. POL'Y ANALYSIS & MGMT. 440, 443, 450 (2014)
(finding former prisoners who were the subject of a research
study struggled considerably to meet even minimal needs for
food and shelter and rarely achieved sustained economic
security); Christy Visher, et al., Urban Inst., Employment
After Prison: A Longitudinal Study of Releasees in Three
States, p. 6 (2008), available at
(reporting that 55% of released prisoners studied in three
states-Illinois, Ohio, and Texas-were unemployed eight months
after release); Joan Petersilia, When Prisoners Return to
Communities: Political, Economic, and Social
Consequences (Nov. 2000), available at