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Osborne v. Dorris

United States District Court, S.D. Illinois

May 10, 2019

JAMES M. OSBORNE, Plaintiff,
v.
GERALD DORRIS, SUE FUNKHOUSER, LEON KEHRER, and ASHLEY CRIDER Defendants.

          REPORT AND RECOMMENDATIONS

          MARK A. BEATTY, UNITED STATES MAGISTRATE JUDGE

         The matter has been referred to United States Magistrate Judge Mark A. Beatty by United States District Judge J. Phil Gilbert 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 motions for summary judgment filed by all Defendants (Docs. 51, 52). It is recommended that the District Court adopt the following findings of fact and conclusions of law and construe Plaintiff James Osborne's failure to respond to the motions for summary judgment as an admission of the merits of the motions pursuant to Local Rule 7.1(c) and grant the motions for summary judgment, or in the alternative, dismiss this case based on Osborne's failure to prosecute.

         Procedural History

          Plaintiff James Osborne filed his pro se complaint on December 1, 2016, pursuant to 42 U.S.C. § 1983, alleging that he received inadequate medical care in violation of the Fourteenth Amendment while he was a pretrial detainee in the Franklin County Jail (Doc. 1). In particular, he alleged Defendants Gerald Dorris and Sue Funkhouser arbitrarily punished him by taking him off of his nerve pain medication, and Leon Kehrer and Ashley Crider did nothing when he complained to them about the situation (Doc. 1, Doc. 16). Following a threshold review of the complaint under 28 U.S.C. § 1915A, Osborne was permitted to proceed on a Fourteenth Amendment Claim for inadequate medical care against Defendants Dorris, Funkhouser, Kehrer, and Crider (Doc. 7).

         Defendants Crider and Kehrer filed their motion for summary judgment on August 23, 2018 (Doc. 51), and Defendants Dorris and Funkhouser filed their motion for summary judgment on September 7, 2018 (Doc. 52). The motions, a Rule 56 Notice, and an Order resetting Osborne's deadline to respond were all mailed to Osborne on September 10, 2018, at his address on East Elm Street in West Frankfort, Illinois (see Docs. 51-54). Osborne did not file a response by the deadline on October 10, 2018.

         Nine days later, however, Osborne filed a notice indicating his address changed three days prior and he was now living on Blindel Street in West Frankfort (Doc. 55). As of January 22, 2019, Osborne had still not filed a response to the motion for summary judgment so an Order was entered directing Osborne to show cause why his failure to file a timely response should not be construed as an admission of the merits of the motion for summary judgment under Local Rule 7.1(c) (Doc. 58). Osborne was instructed that in the alternative to responding to the Order to Show Cause, he could simply file responses to the motions for summary judgment (Id.). Osborne was explicitly warned the failure to either file a response to the Order to Show Cause or to file a response to the pending motions for summary judgment may result in dismissal of this action for lack of prosecution pursuant to Federal Rule of Civil Procedure 41(b) and the Court's inherent authority to manage its docket (Id.). Osborne was given until February 5, 2019, to file a response to the show cause order and/or the motion for summary judgment (Id.).

         On January 31, 2019, Osborne filed another notice, indicating his address changed back to the house on East Elm Street (Doc. 59). The Court sua sponte continued Osborne's deadline to file a response to February 22, 2019, and mailed a copy of the docket sheet and the motions for summary judgment to Osborne at his new address (Doc. 61). That mail was returned to the Court on March 13, 2019, with the notation “Insufficient address; unable to forward” (Doc. 62).

         While the Court was trying to locate Osborne, Defendants Crider and Kehrer filed a motion on January 2, 2019, seeking leave to disclose an expert witness (Doc. 56). They argued in their motion for summary judgment that Osborne's claims were governed by the deliberate indifference standard (Docs. 51, 52). However, shortly before they filed their motion, the Seventh Circuit issued its opinion in Miranda v. County of Lake, et al., 900 F.3d 335 (7th Cir. 2018), which held that provision of medical services to pre-trial detainees is governed not by the deliberate indifference standard, but a standard of whether the medical care was objectively reasonable. In light of the shift, Crider and Kehrer believed independent medical expert testimony was necessary to establish that the care they provided to Osborne was objectively reasonable, and they sought leave to secure and disclose their expert's report (Doc. 56).

         Crider and Kehrer mailed copies of their motion and their expert's report to Osborne at his address on East Elm Street (Doc. 56). Osborne did not file any response to the motion. In fact, the Court has not heard anything from Osborne in approximately three and a half months. Crider and Kehrer's motion was granted and they filed their expert report as a supplemental exhibit to their motion for summary judgment (Doc. 64, Doc. 65).

         Failure to Prosecute

         Osborne was informed on more than one occasion he had a continuing obligation to keep the Court informed of his current address and the Court would not independently investigate his whereabouts (Docs. 4, 16). Mail sent to Osborne at the address currently on file with the Court has been returned as undeliverable (Doc. 62). Osborne has not responded to the pending motions for summary judgment despite having approximately eight months to do so and being repeatedly prompted by the Court (see Docs. 54, 58, 61). Nor did Osborne respond to the Order to Show Cause issued nearly four months ago (see Doc. 58).

         Under Rule 41(b) a Court may dismiss an action if the plaintiff fails to prosecute or comply with a court order. Fed.R.Civ.P. 41(b). Osborne is proceeding pro se, and the Court is mindful of the difficulties he faces in doing so. But those difficulties do not excuse him from complying with Court-imposed deadlines or communicating with the Court. The last time the Court heard from Osborne, he stated he was still interested in pursuing this litigation, however, his inaction demonstrates otherwise. As such, it is recommended the District Court dismiss this case with prejudice for want of prosecution.

         Motions For Summary Judgment

          Under Local Rule 7.1(c), the failure to timely file a response to a motion may, in the Court's discretion, be considered an admission on the merits of the motion. SDIL-LR 7.1(c). As previously mentioned, Osborne has failed to respond to Defendants' motions for summary judgment. It is recommended his failure to respond be considered an admission of the merits of the motions.

         A. Findings of Fact

         Osborne was incarcerated at Franklin County Jail from April 29 to August 1, 2016, again from August 30 to December 2, 2016-one day after he filed his complaint in this matter (Doc. 51-1, pp. 20, 21, 45, 50; see also Doc. 51-4, p. 47; see also Docs. 6, 8, 10).

         When Osborne was booked into the Jail on April 29, 2016, he reported he was taking (1) lisinopril, an ACE inhibitor used to treat high blood pressure; (2) Vicodin, an opiate pain medication; (3) Ativan (generic name: lorazepam), a benzodiazepine that can be used to treat anxiety; (4) Elavil (generic name: amitriptyline), a tricyclic antidepressant that is also used to treat nerve pain; (5) Cymbalta, an antidepressant that can also treat pain; and (6) gabapentin, an anticonvulsant that is approved by the FDA to treat seizures and nerve pain caused by shingles and is often used for off-label conditions such as chronic pain, neuropathies, and psychiatric disorders (Doc. 51-4, p. 1; Doc. 65, p. 6).

         The healthcare staff at the Jail was able to verify all of the medications with the pharmacy that Osborne listed, with the exception of the lisinopril and the Cymbalta (Doc. 51-4, p. 2). A medical provider at the Jail continued Osborne's prescriptions for Elavil and gabapentin (Docs. 51-1, 51-2, and 51-4, p. 2). His prescriptions for Vicodin and Ativan, however, were not continued (see Doc. 51-4, p. 2; Doc. 65).

         About two and a half months later, on July 18, 2016, Ashley Crider, a nurse at the Jail, was informed by another inmate that Osborne had allegedly been abusing his gabapentin by snorting it (Doc. 51-1; see also Docs. 51-3, and 51-4). Crider wrote in the medical records that Osborne ‚Äúdidn't deny doing this when ...


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