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Colemann v. Lashbrook

United States District Court, S.D. Illinois

January 25, 2018

DWAINE COLEMAN, Plaintiff,
v.
WARDEN LASHBROOK and MAJOR CARTER, Defendants.

          REPORT AND RECOMMENDATION

          DONALD G. WILKERSON UNITED STATES MAGISTRATE JUDGE

         This 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.

         Findings of Fact

         Plaintiff 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 process.

         United 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).

         Coleman 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[1] were returned as undeliverable; resulting in the case ultimately being dismissed for failure to prosecute (Doc 22).

         Subsequently, 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).

         Notice 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.

         On 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.

         Conclusions of Law

         Federal 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 Cir. 2000)).

         Here, 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 months ago.

         The 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.

         In sum, 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 abandonment ...


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