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Davis v. Butalid

United States District Court, S.D. Illinois

June 6, 2018

MARTIN DAVIS, Plaintiff,
v.
DR. BUTALID, LT. MUNBOWER, NURSE JOHN DOE #1 and NURSE JOHN DOE #2, Defendants.

          REPORT AND RECOMMENDATION

          DONALD G. WILKERSON, UNITED STATES MAGISTRATE JUDGE.

         This 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.

         Findings of Fact

         Plaintiff 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 (Doc. 1).

         On May 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).

         The Court conducted a preliminary review pursuant to 28 U.S.C. § 1915A, and Davis was allowed to proceed on the following claims:

Count 1: Eighth Amendment claim against Munbower for deliberate indifference to Plaintiff's symptoms of sudden facial paralysis;
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 facial paralysis;
Count 3: Eighth Amendment deliberate indifference claim against Dr. Butalid, for failing to provide continuing care for Plaintiff's condition after diagnosing him with Bell's palsy.

(Doc. 9).

         On 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).

         Davis 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).

         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 ...


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