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Newcomb v. Wexford Health Sources, Inc., 15-cv-1363-MJR-SCW. (2017)

Court: District Court, S.D. Illinois Number: infdco20170808c11 Visitors: 8
Filed: Jul. 17, 2017
Latest Update: Jul. 17, 2017
Summary: REPORT AND RECOMMENDATION STEPHEN C. WILLIAMS , Magistrate Judge . Pro se Plaintiff Kevin Newcomb filed the present action pursuant to 42 U.S.C. 1983 alleging violations of his civil rights during his incarceration with the Illinois Department of Corrections ("IDOC"). This matter is before the Court on an oral Motion to Dismiss (Doc. 76) raised by the Defendants during a Status Conference on July 12, 2017. As further discussed below, the undersigned RECOMMENDS that the district judge
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REPORT AND RECOMMENDATION

Pro se Plaintiff Kevin Newcomb filed the present action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights during his incarceration with the Illinois Department of Corrections ("IDOC"). This matter is before the Court on an oral Motion to Dismiss (Doc. 76) raised by the Defendants during a Status Conference on July 12, 2017. As further discussed below, the undersigned RECOMMENDS that the district judge GRANT the oral motion and DISMISS this matter due to Plaintiff's failure to prosecute.

BACKGROUND

Plaintiff filed suit on December 15, 2015. (Doc. 1). At the time Plaintiff filed suit he was incarcerated at Lawrence Correctional Center ("Lawrence"). (Id. at 1). On June 26, 2017, Defendants filed a Motion for Extension of Time to Complete Discovery and File Dispositive Motions. (Doc. 72). In that motion, Defendants indicated that in inquiring with Lawrence staff regarding taking Plaintiff's deposition, counsel for Defendants was informed that Plaintiff had been paroled on June 12, 2017. (Id. at 1). In addition, a search of IDOC's website indicates that Plaintiff is listed as paroled. To this date, however, Plaintiff has failed to notify neither the Court nor counsel for Defendants of Plaintiff's new address. In his merits review order, Judge Reagan informed Plaintiff that he was under a continuing obligation to keep the Clerk of Court and opposing parties notified of any change of address, and that such notification should take place within seven (7) days after an address change. (Doc. 6, p. 7). Plaintiff was also informed that failure to notify of an address change could result in dismissal for want of prosecution. (Id.).

On June 27, 2017, the Court set this matter for a Status Conference to take place on July 12, 2017. (Doc. 73). The Notice of Hearing contained the following warning: "Failure to appear by Plaintiff may result in dismissal of this suit for failure to prosecute." The notice was sent to Lawrence, but has been returned to the Court as undeliverable. (Doc. 74).

Plaintiff then failed to appear for the July 12. At that hearing, counsel for Defendants indicated that discovery had been sent to Plaintiff prior his parole, and it was counsel's understanding that Plaintiff had received the discovery. Plaintiff has failed to respond to the discovery, however. Defense counsel then raised an oral motion asking the Court to dismiss this matter for want of prosecution.

ANALYSIS

Under Rule 41(b), a court may dismiss an action with prejudice "if the plaintiff fails to prosecute or to comply with [the Federal Rules] or a court order." FED.R.CIV.P. 41(b). A district court should dismiss a suit under Rule 41(b) "when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing." Salata v. Weyerhauser Co., 757 F.3d 695, 699 (7th Cir. 2014) (quoting Webber v. Eye Corp., 721 F.2d 1067, 1069 (7th Cir. 1983)) (internal quotations omitted). In addition, district courts have an inherent power to dismiss suits due to a plaintiff's failure to prosecute. Link v. Wabash Railroad Co., 370 U.S. 626, 629, 82 S.Ct. 1386, 8L.Ed.2d 734 (1962). This power is necessary in order to prevent unnecessary delays in disposing of pending cases and to avoid clogging the district courts' calendars. Id. at 629 - 30.

Plaintiff has shown no interest in prosecuting his suit. Though Plaintiff has been discharged from Lawrence, he has failed to file a change of address with the Court, even though the threshold order instructed him to do so. Plaintiff has also failed to participate in discovery as he has failed to respond to discovery that he likely received. Regardless, the Defendants are now unable to serve him with any duplicate or additional discovery requests. In addition, this Court set a Status Conference, to which Plaintiff did not appear. The Notice of Hearing was viewable to the public, and specifically indicated that Plaintiff's failure to appear could result in dismissal of his lawsuit. The threshold order also specifically indicated that failure to notify the Court of a change of address could result in a dismissal. Therefore, Plaintiff had adequate warning of the consequences of failing to notify the Court of a new address and of failing to appear at the hearing. See Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir. 1993) (holding "there must be an explicit warning before the case is dismissed" for failure to prosecute). Not only would it be an absurdity to continue this suit when neither the Court nor the Defendants are able to contact Plaintiff due to Plaintiff's own lack of diligence, but to do so would also constitute a senseless waste of time and resources of the Court, the Defendants, and their counsel. This suit should be dismissed.

CONCLUSION

Plaintiff failed to appear to the July 13, 2017 Status Conference, failed to respond to discovery, and failed to notify the Court of his new address, thereby preventing Defendants from serving Plaintiff with further discovery or otherwise communicating with Plaintiff. As such, Plaintiff has failed to diligently prosecute his suit. For these reasons, the undersigned RECOMMENDS that the district judge GRANT Defendants' oral Motion to Dismiss (Doc. 76), and DISMISS all claims in this matter with prejudice.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 73.1(b), the parties may object to any or all of the proposed dispositive findings in this Recommendation. The failure to file a timely objection may result in the waiver of the right to challenge this Recommendation before either the District Court or the Court of Appeals. See, e.g., Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004). Accordingly, Objections to this Report and Recommendation must be filed on or before August 3, 2017.

IT IS SO ORDERED.

Source:  Leagle

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