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Smith v. Santos

United States District Court, S.D. Illinois

January 17, 2018

FOR THE SOU KEVIN SMITH, Plaintiff,
v.
VENERIO SANTOS, et al., Defendant.

          REPORT AND RECOMMENDATION

          Hon. Reona J. Daly United States Magistrate Judge.

         The matter has been referred to United States Magistrate Judge Reona J. Daly by United States District Judge J. Phil Gilbert pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the Motion to Dismiss for Want of Prosecution filed by Defendant Krebs (Doc. 35) and the Motion to Join Defendant Kreb's Motion to Dismiss and Stay Discovery filed by Defendant Santos (Doc. 39). It is RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law, and GRANT the Motions to Dismiss.

         Findings of Fact

         Plaintiff Kevin Smith, a former inmate in the custody of the Illinois Department of Corrections (“IDOC”), filed this lawsuit on May 10, 2017, pursuant to 42 U.S.C. § 1983 alleging his constitutional rights were violated while he was incarcerated at Centralia Correctional Center (“Centralia”). After an initial screening of Plaintiff's complaint pursuant to 28 U.S.C. §1915A, Plaintiff was allowed to proceed on the following claim:

Count 1: Santos and Krebs were deliberately indifferent to Plaintiff's serious medical need when they failed to take action to treat and evaluate his torn bicep in violation of the Eighth Amendment.

         On October 16, 2016, Plaintiff was ordered to show cause as to why this case should not be dismissed for failing to provide the Court with a current address and warned that his case may be dismissed if he does not respond to the order (Doc. 34). Plaintiff was given until November 16, 2017 to respond (Id.). Plaintiff failed to respond.

         On December 6, 2017, Defendant Krebs filed the motion to dismiss now before the Court asking that this matter be dismissed due to Plaintiff's failure to prosecute this action and abide by the Court's order. On December 14, 2017, Defendant Santos filed a motion to join Defendant Krebs's Motion to Dismiss. Plaintiff did not file a response to either motion filed by Defendants despite being provided ample time and opportunity.

         Conclusions of Law

         Federal 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).

         Though 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).

         Based on a review of the record and upon consideration of the applicable law, it is recommended that this action be dismissed for failure to prosecute. The Court has not received any filings from Plaintiff regarding this matter since September 28, 2017 (Doc. 29). While the Court acknowledges that Plaintiff is no longer incarcerated and has been paroled since October, 2017, such circumstance does not excuse his failure to prosecute this matter. Plaintiff was advised on July 25, 2017, of his continuing obligation to keep the Clerk of Court informed of any change of address and warned that failure to comply could result in dismissal. Plaintiff was then explicitly warned again by the Court on October 16, 2017, and has exhibited disregard for the court's order.

         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 ...


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