Filed: Jan. 02, 2019
Latest Update: Jan. 02, 2019
Summary: REPORT AND RECOMMENDATION REONA J. DALY , 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 Order to Show Cause (Doc. 22). It is RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law, and the case be DISMISSED for fa
Summary: REPORT AND RECOMMENDATION REONA J. DALY , 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 Order to Show Cause (Doc. 22). It is RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law, and the case be DISMISSED for fai..
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REPORT AND RECOMMENDATION
REONA J. DALY, 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 Order to Show Cause (Doc. 22). It is RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law, and the case be DISMISSED for failure to prosecute.
FINDINGS OF FACT
Plaintiff Deadric Willingham, 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 Pinckneyville Correctional Center ("Pinckneyville"). He is proceeding on the following counts:
Count 1: Eighth Amendment deliberate indifference claim against Dr. Sara, for prescribing Plaintiff a medication for his mental health condition that caused him to have a persistent erection, and severe pain and bleeding from his penis;
Count 2: Eighth Amendment deliberate indifference claim against Unknown Nurse #1, for refusing and delaying medical treatment for Plaintiff's painful side effects from his medication on October 17-18 and October 29-30, 2017;
Count 3: Eighth Amendment deliberate indifference claim against Unknown Correctional Lt., for delaying medical treatment for Plaintiff's painful side effects from his medication on October 29-30, 2017.
On April 13, 2018, the Court issued 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 change of address occurs. On December 3, 2018 and December 6, 2018, documents sent to Plaintiff were returned to the Court as undeliverable (Docs. 20 and 21). On December 7, 2018, the Court ordered Plaintiff to show cause why he had failed to update his address with the Court (Doc. 22). Plaintiff was warned that failure to respond by December 21, 2018 could result in dismissal of the action. Plaintiff failed to respond to the Order to Show Cause.
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 against these defendants.
RECOMMENDATIONS
Based upon a review of the record and upon consideration of the applicable law, it is recommended that this case be DISMISSED WITH PREJUDICE for failure to prosecute.
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), the parties shall have fourteen (14) days after service of this Report and Recommendation to file written objection thereto. The failure to file a timely objection may result in the waiver of the right to challenge this Report and 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).
