United States District Court, S.D. Illinois
REPORT AND RECOMMENDATION
Reona J. Daly United States Magistrate Judge.
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
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.
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.
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
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.
(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,
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).
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
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 ...