United States District Court, S.D. Illinois
JAMES C. JENNINGS, JR., Plaintiff,
MR. GARDNER, SHERRY BENTON, and JANE DOE, Defendants.
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE
James C. Jennings, Jr., an inmate of the Illinois Department
of Corrections (“IDOC”) who is currently
incarcerated at Pinckneyville Correctional Center, brings
this action pursuant to 42 U.S.C. § 1983 for
deprivations of his constitutional rights at Menard
Correctional Center. In the Complaint, Plaintiff alleges the
defendants failed to protect him in violation of the Eighth
Amendment when they denied his requests for protective
case is now before the Court for preliminary review of the
Complaint pursuant to 28 U.S.C. § 1915A. Under Section
1915A, the Court is required to screen prisoner complaints to
filter out non-meritorious claims. See 28 U.S.C.
§ 1915A(a). Any portion of a complaint that is legally
frivolous, malicious, fails to state a claim upon which
relief may be granted, or asks for money damages from a
defendant who by law is immune from such relief must be
dismissed. 28 U.S.C. § 1915A(b).
Plaintiff's second attempt to file this lawsuit. On
November 11, 2017, Plaintiff filed a Complaint in
Jennings Jr. v. Garner, No. 17-cv-1220-MJR-MAB. In
that case, Plaintiff alleged that he was released from
segregation into Menard's East House on June 17, 2017,
and was approached by several “moes” who told him
to check into protective custody for his own safety
(Garner Case, Doc. 8, p. 2). He apparently owed
money to several inmates. He requested protective custody,
which was temporarily granted, but he was ultimately denied
protective custody by Counselor Collins and Internal Affairs
Officer Garner (Id. at p. 3). On July 20, 2017, he
spoke to Chairperson Benton, but she also denied his request
for protective custody. Six days later, Plaintiff was
attacked in the gym by an inmate. (Id. at ¶ 4).
was allowed to proceed with his failure to protect claim
against the defendants. Jeannette Cowan was later substituted
for Counselor Collins (Garner Case, Doc. 31). The
case proceeded, and on October 9, 2018, Plaintiff informed
the Court that he had been released from prison and provided
his new address (Garner Case, Doc. 46). The case was
subsequently set for a settlement conference. On December 7,
2018, Magistrate Judge Daly held a settlement conference, but
Plaintiff failed to appear (Garner Case, Doc. 49).
Defendants orally moved to dismiss the case for failure to
prosecute (Garner Case, Doc. 50). The motion was set
for hearing for December 19, 2018 (Garner Case, Doc.
51). Plaintiff was warned that failure to appear at the
hearing would result in a dismissal of his claims. Plaintiff
failed to appear at the hearing, and a Report and
Recommendation was entered, recommending that the case be
dismissed pursuant to Federal Rule of Civil Procedure 41(b)
for failure to prosecute (Garner Case, Doc. 53).
Plaintiff had until January 7, 2019, to object to the Report
and Recommendation; he failed to do so, and thus the case was
dismissed with prejudice. On January 10, 2019, judgment was
entered (Garner Case, Doc. 56).
allegations in this case are nearly identical to his prior
case. In fact, Plaintiff acknowledges that the case is
identical, noting that he had to file another Complaint
because he missed his deadline and directing the Court to his
previous case for copies of documents (Doc. 1, pp. 1 and 5).
His current case contains identical allegations. He alleges
that he was released from segregation and subsequently warned
on the yard by several “moes” to check into
protective custody (Doc. 1, p. 7). The defendants denied his
request for protective custody and a transfer to another
prison. He was then attacked by the “moes” while
in the gym (Id.).
new claims are barred by res judicata. The doctrine of res
judicata precludes parties from relitigating issues that were
or could have been raised in a prior action in which there
was a final judgment on the merits. Highway J Citizens
Group v. United States Department of Transportation, 456
F.3d 734, 741 (7th Cir. 2006). The three requirements for res
judicata are: “(1) an identity of the parties or their
privies; (2) an identity of the causes of actions; and (3) a
final judgment on the merits.” Id.
(quoting Cent. States, S.E. & S.W. Areas Pension Fund
v. Hunt Truck Lines, Inc., 296 F.3d 624, 628 (7th Cir.
there is identity of parties as Mr. Gardner and Sherry Benton
were defendants in both the 2017 case and the present case.
Although Plaintiff identifies a Jane Doe Head Supervisor in
the present case, he indicates that it is the same defendant
(Jeannette Cowan) that he named in the Garner case
(Doc. 1, pp. 1 and 3). Plaintiff's failure to protect claim
is also identical to the failure to protect claim raised in
his prior case. The dismissal of Plaintiff's prior case
for failure to prosecute pursuant to Federal Rule of Civil
Procedure 41(b) constituted a final judgment on the merits.
See Fed. R. Civ. P. 41(b) (“Unless the
dismissal order states otherwise, a dismissal under this
subdivision (b)…operates as an adjudication on the
merits.”); Taylor v. City of Chicago, 334 F.
App'x. 760, 761 (7th Cir. 2009) (“A dismissal for
failure to prosecute operates as a final judgment on the
res judicata is an affirmative defense, the court
may raise it when it is clear from the face of the complaint
that the suit is frivolous. See Gleash v. Yuswak,
308 F.3d 758, 760-761 (7th Cir. 2002); see also Walker v.
Thompson, 288 F.3d 1005, 1009-10 (7th Cir. 2002)
(dismissal on the basis of an affirmative defense prior to
service is appropriate when “the validity of the
defense [is] apparent from the complaint itself ... and
unmistakable, so that the suit is fairly describable as
frivolous.”). Here, it is clear from the Complaint that
Plaintiff's failure to protect claim is identical to the
claim in his previously dismissed case and is barred by res
reasons stated, Plaintiff's Complaint is barred by res
judicata. This action is DISMISSED with
prejudice. This shall count as a
“strike” for purposes of 28 U.S.C. 1915(g).
Plaintiff wishes to appeal this Order, he must file a notice
of appeal with this Court within thirty days of the entry of
judgment. Fed. R. App. P. 4(a)(1)(A). If Plaintiff does
choose to appeal, he will be liable for the $505.00 appellate
filing fee irrespective of the outcome of the appeal.
See Fed. R. App. P. 3(e); 28 U.S.C. §
1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724,
725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d
857, 858-59 (7th Cir. 1999); Lucien, 133 F.3d at
467. He must list each of the issues he intends to appeal in
the notice of appeal and his motion for leave to appeal
in forma pauperis. See Fed. R. App. P.
24(a)(1)(C). A proper and timely motion filed pursuant to
Federal Rule of Civil Procedure 59(e) may toll the 30-day
appeal deadline. Fed. R. App. P. 4(a)(4). A Rule 59(e) motion
must be filed no more than twenty-eight (28) days after the
entry of judgment, and this 28-day deadline cannot be
Clerk's Office is DIRECTED to close this
case and ...