dismissal for failure to prosecute is presumptively with prejudice
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- dismissal for failure to prosecute is presumptively with prejudice
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOEY THOMAS, #326982,1 )
IDOC#B85309, )
)
Plaintiff, )
vs. ) Case No. 21-cv-00162-JPG
)
RICHARD WATSON, )
TRINITY SERVICE GROUP, )
and DR. DAVID MARCOWITZ, )
)
Defendants. )
MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter is before the Court for case management. Plaintiff Joey Thomas joined with 12
other inmates in the St. Clair County Jail (“the Jail”) to file this civil rights action in February
2021, claiming unconstitutional conditions of confinement. See Brown v. Watson, Case No. 21-
cv-138-JPG (S.D. Ill. filed Feb. 9, 2021). This case was severed into a separate individual action
and the Court determined on April 6, 2021 that four claims survived preliminary merits review
under 28 U.S.C. § 1915A. (Doc. 16). On April 23, 2021, Plaintiff notified the Court that he had
been transferred to Menard Correctional Center (Doc. 19), and he was later moved to Pinckneyville
Correctional Center. (Doc. 29).
In October and November 2021, Defendants filed separate motions for summary judgment
asserting that Plaintiff failed to exhaust his administrative remedies at the Jail before filing suit.
(Docs. 48, 51, 54). Plaintiff was notified that if he failed to respond to these motions, the Court
may deem his lack of response to be an admission of the motions’ merits and the case could be
1 Plaintiff’s inmate number at the St. Clair County Jail was #326982. He is currently an inmate of the Illinois
Department of Corrections (“IDOC”).
closed. (Docs. 50, 53, 56). To date, Plaintiff has filed no response to these motions.
On November 2, 2021, Defendant Marcowitz filed a motion to compel Plaintiff to produce
his initial disclosures as required in the Court’s Initial Scheduling and Discovery Order at Doc. 47,
which had been due by October 1, 2021. (Doc. 57). On November 3, 2021, the Court ordered
Plaintiff to show cause, on or before November 17, 2021, why Marcowitz’s motion to compel
(Doc. 57) should not be granted.2 (Doc. 58). The Court warned Plaintiff that if he failed to show
cause as ordered, sanctions could be imposed including dismissal of this action. (Doc. 58). That
order was mailed to Plaintiff’s address of record and was not returned as undeliverable. The
November 17, 2021, deadline passed long ago. Plaintiff has never responded to the Order to Show
Cause or sent any further communication to the Court.
Federal Rule of Civil Procedure 41(b) provides for dismissal of an action “[i]f the plaintiff
fails to prosecute or to comply with these rules or a court order[.]” In light of Plaintiff’s failure to
respond to the four pending motions, the Scheduling and Discovery Order, and the Order to Show
Cause, the Court finds that Plaintiff has failed to prosecute his claims and has failed to comply
with orders of the Court. For these reasons, this action shall be dismissed with prejudice. See FED.
R. CIV. P. 41(b).
Disposition
IT IS HEREBY ORDERED that this action is DISMISSED with prejudice pursuant to
Federal Rule of Civil Procedure 41(b); see generally James v. McDonald’s Corp., 417 F.3d 672,
681 (7th Cir. 2005); Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Lucien v. Breweur, 9
F.3d 26, 29 (7th Cir. 1993) (dismissal for failure to prosecute is presumptively with prejudice). All
pending motions are DENIED AS MOOT.
2 Notably, the Court had previously warned Plaintiff in the Initial Scheduling and Discovery Order that
failure to follow it “may result in sanctions, including dismissal of the case.” (Doc. 47, p. 1).
Plaintiff is ADVISED that his obligation to pay the filing fee for this action was incurred
at the time the action was filed. (See Docs. 5, 10). Therefore, the $350.00 filing fee remains due
and payable. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
If Plaintiff wishes to appeal the dismissal of his case, his notice of appeal must be filed
with this Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A motion
for leave to appeal in forma pauperis must set forth the issues Plaintiff plans to present on appeal.
See FED. R. APP. P. 24(a)(1)(C). 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 v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). 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 the judgment, and this 28-day deadline cannot be extended.
The Clerk is DIRECTED to close this case and enter judgment accordingly. The Clerk is
FURTHER DIRECTED to transmit a copy of the Order granting Plaintiff’s motion to proceed
in forma pauperis and directing payment of the filing fee (Doc. 15) to the Trust Fund Officer at
Pinckneyville Correctional Center.
IT IS SO ORDERED.
DATED: 5/4/2022
s/ J. Phil Gilbert_____
J. PHIL GILBERT
United States District Judge