United States District Court, S.D. Illinois
IVAN J. WALTON, Plaintiff,
DIRECTOR OF THE ILLINOIS DEPARTMENT OF CORRECTIONS, K. HUNTER, WARDEN ETIENNE, MAJOR DENNISON, B. ALLARD, and J. BARWICK, Defendants.
MEMORANDUM AND ORDER
J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE.
before the Court is the Report and Recommendation of
Magistrate Judge Donald G. Wilkerson (Doc. 65), which
recommends that Defendants' Motion for Sanctions (Doc.
60) be granted, Defendants' Motion to Stay Discovery
(Doc. 61) and Motion to Compel Discovery (Doc. 62) be denied
as moot, and that this action be dismissed with prejudice.
For the following reasons, the Court adopts the Report and
Recommendation, but modifies the disposition to address
Defendants' request for reimbursement of $150 in court
April 25, 2016, Plaintiff Ivan Walton filed an amended
complaint pursuant to 42 U.S.C. § 1983 alleging his
constitutional rights were violated by officials at Shawnee
Correctional Center when they deprived him of 141.5 days of
earned good conduct credit and, in doing so, unnecessarily
prolonged his incarceration in state prison (Doc. 1, pp.
8-18). On July 25, 2016, Walton provided the Court with a new
address since he had been released from prison (Doc. 25, p.
1). Defendants served Walton with a notice of deposition at
this address on August 29, 2017; however, Walton did not
appear for the scheduled deposition (Doc. 60, p. 2). As a
result, Defendants incurred $150 in court reporter fees. On
September 6, 2017, Defendants served Walton with written
discovery requests, to which Walton did not respond (Docs.
61, 62). Defense counsel sent correspondence to Walton in an
effort to confer with him regarding the outstanding discovery
requests but received no response (Doc. 62, p. 2).
December 18, 2017, Magistrate Judge Wilkerson held a hearing
for Walton to appear and show cause as to why the case should
not be dismissed for failure to comply with discovery (Doc.
63). Despite notice of the hearing and a warning that the
failure to appear may result in sanctions, including
dismissal of this action, Walton did not appear. On December
18, 2017, Magistrate Judge Wilkerson issued the Report and
Recommendation currently before the Court, recommending that
this action be dismissed with prejudice. Objections to the
Report and Recommendation were due January 5, 2018; no
objections were filed.
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); see also Govas v. Chalmers, 965 F.2d 298,
301 (7th Cir. 1992). Where no objections to the Report and
Recommendation are made, however, this Court need not conduct
a de novo. 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 district
judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter
to the magistrate judge with instructions. 28 U.S.C. §
636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).
Court agrees with Magistrate Judge Wilkerson and finds no
clear error in his conclusion that Defendants' motion for
sanctions should be granted to the extent they request
dismissal of this case. Walton failed to respond to discovery
and to appear for his scheduled deposition. Walton was then
ordered to appear at the Show Cause Hearing and was warned of
the consequences for failing to do so (Doc. 63). Walton's
failure to participate in discovery and to comply with the
Court's orders requires dismissal of this action.
the Court will not require Walton to pay the $150 in court
reporter fees as requested by Defendants. Pursuant to Rule
37(d)(3), the party failing to attend its own deposition
“must” pay reasonable expenses, “unless the
failure was substantially justified or other circumstances
make an award of expenses unjust.” Fed.R.Civ.P. 37
(d)(3). In this case, the Court issued an Order on February
13, 2017, granting Walton's motion to proceed in
forma pauperis (“IFP”) and ordering Walton
to pay an initial partial filing fee (Doc. 53). Because
Walton was no longer incarcerated, the Order further required
Walton to pay the remaining balance of the $350 filing fee or
file an updated motion to proceed IFP by February 27, 2017.
The Order warned that failure to comply with those directions
would result in dismissal of the case. Walton never paid his
initial partial filing fee or filed an updated motion to
proceed IFP. Thus, Walton reasonably could have assumed this
case had already been dismissed (and perhaps desired that it
be dismissed, considering he was no longer incarcerated) when
he received his notice of deposition in August 2017. Yet, the
Court did not dismiss the case as it had warned. Under these
circumstances, the Court finds it unjust to award expenses to
Court ADOPTS the Report and Recommendation
entered by Magistrate Judge Donald G. Wilkerson with the
above-referenced modification (Doc. 65). Defendants'
Motion for Sanctions (Doc. 60) is GRANTED in part and
DENIED in part, in that this case is dismissed, but
Walton will not be ordered to reimburse Defendants $150 as a
sanction for failing to attend his deposition.
Defendants' Motion to Stay Discovery (Doc. 61) and Motion
to Compel Discovery (Doc. 62) are DENIED as
moot. This action is DISMISSED with
prejudice, and the Clerk of Court is
DIRECTED to enter judgment accordingly.
IS SO ORDERED.
 Magistrate Judge Wilkerson's
Report and Recommendation did not address Defendants'
request for ...