United States District Court, S.D. Illinois
REPORT AND RECOMMENDATION
G. WILKERSON UNITED STATES MAGISTRATE JUDGE
matter has been referred to United States Magistrate Judge
Donald G. Wilkerson by United States District Judge Nancy J.
Rosenstengel 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 Defendants' Motion to
Dismiss (Doc. 12). For the reasons set forth below, it is
RECOMMENDED the Motion to Dismiss be
GRANTED and that the Court adopt the
following findings of fact and conclusions of law.
Dwaine Coleman's cause of action arose from his
incarceration at Menard Correctional Center. This action
contains eight claims that were severed from Plaintiff's
original lawsuit filed in this Court on May 16, 2017, and
styled as Coleman v. Lashbrook, et. al., No.
17-cv-518-DRH-SCW (Doc. 1). Among other claims, Coleman
alleges that Defendants violated his constitutional rights by
sexually harassing him, retaliating against him when he
complained about that treatment, and depriving him of due
States District Court Judge David R. Herndon issued an Order
on July 19, 2017, in which Plaintiff was advised he was under
a continuing obligation to notify the Clerk of the Court and
each opposing party, within seven days, of any change in his
address (Doc. 8). The Court also advised Coleman that a
failure to comply with that Order could result in dismissal
of his action for want of prosecution (Doc. 8).
was released from prison on July 28, 2017 (Doc. 12, p. 2),
but did not file a change of address in this case. While
Coleman did provide a new address to Judge Williams in the
companion case, he failed to respond to any request from
Defendants' Counsel in that case and all documents sent
to that address were returned as undeliverable; resulting
in the case ultimately being dismissed for failure to
prosecute (Doc 22).
Defendants filed the pending Motion to Dismiss for failure to
prosecute in this action (Doc. 12). On January 5, 2018 an
Order to Show Cause was issued by the undersigned, notifying
Coleman that a Show Cause hearing was set for Wednesday,
January 24, 2018 at 1:30 p.m. (Doc. 15, p. 2). Coleman was
ordered to appear in person and show cause why the pending
action should not be dismissed for failure to prosecute (Doc.
15, p. 2). Coleman was further warned that failure to appear
at the hearing could result in sanctions being imposed,
including a recommendation that this cause of action be
dismissed with prejudice (Doc. 15, p. 3).
of the hearing was sent to Coleman at his address of record
(Menard Correctional Center) as well as to the Chicago
address Coleman provided in his companion case (1706 N.
Kedzie, Chicago, Illinois 60647). The notice sent to Menard
Correctional Center was returned as undeliverable due to
Coleman being paroled (Doc. 17). The notice sent to the
Chicago address has not been returned to the Court.
January 24, 2018, the Show Cause hearing was called. Counsel
for Defendants appeared. Coleman failed to appear despite a
more than 20 minute wait by the Court and his name being
called three times in the hallway outside the courtroom.
Rule of Civil Procedure 41(b) provides that “[i]f the
plaintiff fails to prosecute or to comply with these rules or
a court order, a defendant may move to dismiss the action or
any claim against it.” In dismissing a case for lack of
prosecution, the Seventh Circuit has indicated that a
district court must not “dismiss a suit
‘immediately after the first problem, without exploring
other options or saying why they would not be
fruitful.'” Sroga v. Huberman, 722 F.3d
980, 982 (7th Cir. 2013) (quoting Johnson v. Chi. Bd. of
Educ., 718 F.3d 731, 732-33 (7th Cir. 2013)). The
Seventh Circuit has suggested that in addition to a warning
to the plaintiff, the court must consider essential factors
such as “the frequency and egregiousness of the
plaintiff's failure to comply with other deadlines, the
effect of the delay on the court's calendar, and the
prejudice resulting to the defendants.” Id.
(citing Kruger v. Apfel, 214 F.3d 784, 786-87 (7th
the undersigned finds that Coleman has failed to comply with
an Order of the Court. Judge Herndon's July 19, 2017
Order advised Coleman he was under a continuing obligation to
notify the Clerk of the Court and each opposing party of any
change in his address within seven days (Doc. 8). Contrary to
that Order, Coleman has yet to provide this Court with a
current address despite his release from prison almost six
Court further finds that Coleman has failed to prosecute this
case. Coleman has had no contact with this Court, either by
phone or in writing, since he filed his original complaint in
July, 2017. Further, despite notice of the Show Cause hearing
being sent to both Coleman's address on record and the
last known address from the companion case, Coleman failed to
appear and show cause why this action should not be dismissed
for failure to prosecute.
the Court finds Coleman's long-term failure to comply
with the Court's order regarding notification of any
change in his address, his failure to prosecute the companion
case, the lack of any contact with the Court since the filing
of his complaint, and his failure to appear at the Show Cause
hearing, as evidence that Coleman is no longer interested in
pursuing his claims. In light of Coleman's apparent