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Cordrey v. Lamb

United States District Court, S.D. Illinois

April 5, 2019

MARK CORDREY, Plaintiff,
v.
NICK LAMB, et al., Defendants.

          REPORT AND RECOMMENDATION

          Hon. Reona J. Daly, United States Magistrate Judge

         The matter has been referred to United States Magistrate Judge Reona J. Daly by United States District Judge Staci M. Yandle 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 (Doc. 21) filed by Defendants. It is RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law, and Defendants' Motion be GRANTED.

         Findings of Fact

         Plaintiff Mark Cordrey, a former inmate in the custody of the Illinois Department of Corrections (“IDOC”), filed this action pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated while he was incarcerated at Lawrence Correctional Center (“Lawrence”). He is proceeding on the following count:

Count 1: Eighth Amendment claim against Goble, Jane Doe 1 and Jane Doe 2, for deliberate indifference to Plaintiff's need for medical treatment of his stab wounds and pain after the September 1, 2016, attack by his cellmate;

         On March 22, 2018, the Court entered the Screening Order (Doc. 10) and reminded Plaintiff that he is under a continuing obligation to keep the Clerk of Court and each opposing party informed of any change in address in writing not later than 7 days after a transfer or other change of address occurs. The Court warned Plaintiff that failure to comply with the order would cause a delay in the transmission of court documents and could result in dismissal of this action for want of prosecution pursuant to Fed.R.Civ.P. 41(b).

         On February 21, 2019, Defendants made an attempt to schedule Plaintiff's deposition and learned Plaintiff was discharged from IDOC custody on January 4, 2019. A review of the docket reveals Plaintiff has failed to provide the Court with a current address. On February 28, 2019, Defendants filed a Motion to Dismiss for failure to comply with court orders. Plaintiff failed to timely file any response to the motion. On March 1, 2019, the Court entered an Order to Show Cause (Doc. 22) warning Plaintiff that failure to respond by March 15, 2019 could result in dismissal of the action. Plaintiff failed to timely respond to the Order to Show Cause and failed to provide the Clerk of Court with a current address.

         Conclusions of Law

          Federal Rule of Civil Procedure 41(b) provides for involuntary dismissal for failure to prosecute an action or to comply with court orders. Under 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. 2003) (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).

         Though dismissal is left up to the discretion of district courts, 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).

         Plaintiff has repeatedly exhibited disregard for this Court's Orders. Specifically, Plaintiff was ordered to notify the Court of any change in address and has not done so. Additionally, Plaintiff has failed to file a response to the Order to Show Cause. Plaintiff's inaction demonstrates a clear record of delay and contumacious conduct that has needlessly delayed this litigation. It is apparent that Plaintiff has lost interest in litigating this matter.

         Recommendations

         Based upon a review of the record and upon consideration of the applicable law, it is recommended that this case be DISMISSED ...


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