Fenton v. Watson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

TREVON FENTON, #465456,1 )

IDOC# Y49200, )

)

Plaintiff, )

vs. ) Case No. 21-cv-00165-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 Trevon Fenton 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. 14).

On November 3, 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. 45,

which had been due by October 11, 2021. (Doc. 46). Also on November 3, 2021, the Court ordered

1 Plaintiff’s inmate number at the St. Clair County Jail was #465456. According to the online records of the

St. Clair County Circuit Court (Case No. 19-CF-1366) and the Illinois Department of Corrections

(“IDOC”), Plaintiff was sentenced on December 9, 2021 to a 14-year term and has been in IDOC custody

since January 5, 2022. He is now incarcerated at Big Muddy River Correctional Center, with IDOC

#Y49200. See https://www2.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx, and https://www.co.st-

clair.il.us/departments/circuit-clerk/courts (last visited May 5, 2022). See Bova v. U.S. Bank, N.A., 446 F.

Supp. 2d 926, 930 n.2 (S.D. Ill. 2006) (a court may judicially notice public records available on government

websites) (collecting cases).

Plaintiff to show cause, on or before November 17, 2021, why Marcowitz’s motion to compel

(Doc. 46) should not be granted.2 (Doc. 47). The Court warned Plaintiff that if he failed to show

cause as ordered, sanctions could be imposed including dismissal of this action. (Doc. 47). That

order was mailed to Plaintiff’s address of record at the St. Clair County Jail and was not returned

as undeliverable. The November 17, 2021, deadline passed long ago and Plaintiff has never

responded to the Order to Show Cause.

Also on November 3, 2021, Defendant Marcowitz filed a motion for summary judgment

asserting that Plaintiff failed to exhaust his administrative remedies at the Jail before filing suit.

(Doc. 48). Soon thereafter, the remaining two Defendants filed separate summary judgment

motions raising failure to exhaust. (Docs. 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 closed. (Docs. 50, 53, 56). To date, Plaintiff has filed no response to

these motions or sent any further communication to the Court.

Additionally, Plaintiff has failed to notify the Clerk of Court of his change of address after

he was transferred to IDOC custody. See https://www2.illinois.gov/idoc/Offender/Pages/Inmate

Search.aspx (last visited May 5, 2022). Plaintiff was advised more than once of his obligation to

notify the court of any address change, and was warned that the consequences of such failure could

include dismissal of the case. (Doc. 10; Doc. 14, p. 8). And on June 21, 2021, the Court ordered

Plaintiff to show cause why this case should not be dismissed when mail addressed to him at the

St. Clair County Jail was returned as undeliverable. (Docs. 28, 29). In that instance, Plaintiff

promptly verified his address, and the show cause order was discharged. (Docs. 30, 32).

Federal Rule of Civil Procedure 41(b) provides for dismissal of an action “[i]f the plaintiff

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. 45, p. 1).

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, his failure to comply with the Scheduling and Discovery

Order and the Order to Show Cause, and his failure to update his address, 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.

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, 9). 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. 13) to the Trust

Fund Officer at Big Muddy River Correctional Center. Finally, as a one-time courtesy, the Clerk

is DIRECTED to send a copy of this Order to Plaintiff at the Big Muddy River Correctional

Center, where he is incarcerated under IDOC Number Y49200.

IT IS SO ORDERED.

DATED: 5/5/2022

s/ J. Phil Gilbert_____

J. PHIL GILBERT

United States District Judge