United States District Court, S.D. Illinois
REPORT AND RECOMMENDATION
G. WILKERSON, UNITED STATES MAGISTRATE JUDGE.
matter war originally referred to United States Magistrate
Judge Donald G. Wilkerson by United States District David R.
Herndon for a Report and Recommendation on the question of
whether Plaintiff exhausted his administrative remedies prior
to filing this lawsuit, as required by the Prison Litigation
Reform Act, 28 U.S.C. § 1997e(a). Plaintiff failed to
appear for the scheduled hearing on the Motion for Summary
Judgment filed by Defendant Munbower (Doc. 29) and the Motion
for Summary Judgment filed by Dr. Butalid (Doc. 32). As a
result, counsel for Defendants made oral motions to dismiss.
The Court therefore submits this Report and Recommendation,
pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of
Civil Procedure 72(b), and SDIL-LR 72.1(a) on the
aforementioned motions to dismiss for failure to prosecute.
For the reasons set forth below, it is
RECOMMENDED Defendants' oral motions to
dismiss be GRANTED, that this action be
DISMISSED WITH PREJUDICE, and the Court
adopt the following findings of fact and conclusions of law.
Martin Davis, a former inmate at Pinckneyville Correctional
Center, brought this pro se civil rights action
pursuant to 42 U.S.C. § 1983, alleging Defendants were
deliberately indifferent to his serious medical condition
7, 2017, Plaintiff awoke to find that the right side of his
face felt stiff and numb (Doc. 1, p. 3). By the following
day, the right side of Plaintiff's face was completely
numb and stiff. Davis alleges that several nurses and Dr.
Butalid failed to provide him with the medical care necessary
to prevent permanent paralysis (Doc. 1). He also alleges
deliberate indifference by several Illinois Department of
Corrections employees for ignoring his requests for medical
care (Doc. 1).
Court conducted a preliminary review pursuant to 28 U.S.C.
§ 1915A, and Davis was allowed to proceed on the
Count 1: Eighth Amendment claim against Munbower for
deliberate indifference to Plaintiff's symptoms of sudden
Count 2: Eighth Amendment deliberate indifference claim
against John Doe Nurses #1 and #2, for failing to provide
Plaintiff with medical attention for his symptoms of sudden
Count 3: Eighth Amendment deliberate indifference claim
against Dr. Butalid, for failing to provide continuing care
for Plaintiff's condition after diagnosing him with
February 23, 2018 Davis filed a change of address with the
Court, showing a transfer from Pinckneyville Correctional
Center to a residential address in Champaign, Illinois (Doc.
28). A week later Defendant Munbower and Defendant Butalid
filed Motions for Summary Judgment for Failure to Exhaust
Administrative Remedies (Docs. 29, 32). Copies of the motions
were served on Davis at his address in Champaign, Illinois
(Doc. 29, p. 3; Doc. 32, p. 3). At the same time, Munbower
and Butalid also served on Davis Federal Rule of Civil
Procedure Rule 56 Notices, informing Davis of the
consequences of not responding to the Motions for Summary
Judgment (Doc. 31, pp. 1-3, Doc. 24, pp. 1-3). A hearing on
the Motions was scheduled for May 22, 2018 and the Court sent
notice of that hearing to Davis (Doc. 35).
failed to file a response. In an abundance of caution, this
Court issued an Order sua sponte, granting Davis
through April 30, 2018 to file a response and warning him
that failure to respond may result in judgment being granted
in favor of Defendants (Doc. 36). Davis again failed to
respond. On May 22, 2018 counsel for Defendants appeared for
the scheduled motion hearing; Davis failed to appear (Doc.
37). Defendants individually moved for dismissal, which the
Court took under advisement (Doc. 37).
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