Opinion
Case No. 18-cv-18-NJR-RJD
10-23-2019
DAVID ROBERT BENTZ, Plaintiff, v. SUSAN KIRK, et al., Defendants.
REPORT AND RECOMMENDATION
DALY, Magistrate Judge :
This matter has been referred to United States Magistrate Judge Reona J. Daly by United States District Judge Nancy J. Rosenstengel 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 Plaintiff's failure to prosecute this action as to the unknown defendants. It is RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law, and DISMISS the unknown defendants WITH PREJUDICE.
FINDINGS OF FACT
Plaintiff David Robert Bentz, an inmate in the custody of the Illinois Department of Corrections ("IDOC"), filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights stemming from a staff assault at Menard Correctional Center on May 11, 2014. Plaintiff alleges that as a result of this assault he sustained injuries that cause him to suffer jaw pain, swelling to his left shoulder, neck, and head, vision issues in his left eye, neck rotation issues and occasional leg pain.
Plaintiff is proceeding in this action on the following claims (as enumerated in the Court's screening order):
Count One: Eighth Amendment deliberate indifference to medical needs claim against Defendants Trost, Monjie, McGlorn, Jane Does Nurse 1, 2, and 15, Threadgill, Lang, Kulis, John/Jane Doe Medical Staff 3, Waller, Little Westfall, John Doe Sgt. 16, Rogers, Mears, Moldenhauer, Marshall, John/Jane Doe Medical Staff 7, Shah, Hawkins, Siddiqui, Lafone, Pollion, and Wexford for failing to adequately address the injuries that Plaintiff sustained on May 11, 2014 and the chronic pain he continues to experience.
Count Three: First Amendment retaliation claim against Mears and Lang for refusing to provide Plaintiff with medical care in retaliation for his filing lawsuits.
Plaintiff was allowed to proceed against Jane Doe Nurses 1, 2, and 15, John/Jane Doe Medical Staff 3, John Doe Sgt. 16, and John/Jane Doe Medical Staff 7. The Warden of Menard was added as a defendant in order to assist in the identification of the unknown defendants. On March 8, 2019, the Court entered a schedule to assist Plaintiff with the identification of the unknown defendants (Doc. 100). Pursuant to that schedule, Plaintiff was to provide additional descriptive information for the unknown defendants by March 29, 2019, and seek leave to amend his complaint to identify any newly named defendants by May 10, 2019. Plaintiff was warned that his failure to comply with the Order and adequately identify the unknown defendants would result in their dismissal for failure to prosecute.
Plaintiff sought additional time to provide descriptive information for the unknown defendants (Doc. 118), and was granted until April 25, 2019 to provide the same (Doc. 123). The Court also extended Plaintiff's deadline to amend to May 28, 2019 (Id.). Plaintiff filed a second motion for extension of time to provide descriptive information on April 23, 2019 (Doc. 129). The Court granted Plaintiff's motion, extending his time to provide additional descriptive information for the unknown defendants to May 24, 2019. Plaintiff sought leave to extend time to amend his pleadings on May 15, 2019, citing issues with obtaining access to his legal property (Doc. 137). The Court denied Plaintiff's motion, finding Plaintiff failed to provide sufficient documentation concerning his efforts to follow prison procedures to access his property (Doc. 144).
On July 30, 2019, Plaintiff again sought an extension of time to amend his pleadings (Doc. 152). The Court again denied Plaintiff's request, finding he failed to provide sufficient documentation concerning his efforts to follow prison procedures to access his legal storage. The Court also noted Defendants provided ample documentary evidence to refute Plaintiff's contentions concerning his limited access to legal storage.
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. Pursuant to 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). Although there is no requirement of graduated sanctions prior to dismissal, the Court must provide an explicit warning before a case is dismissed. Aura Lamp & Lighting Inc. v. International Trading Corp., 325 F.3d 903, 908 (7th Cir. 2003) (citing Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir. 1993)). Dismissal is the most severe sanction that a court may apply; as such, its use must be tempered by a careful exercise of judicial discretion. Webber v. Eye Corp., 721 F.2d 1067, 1069 (7th Cir. 1983).
As of the date of this Report and Recommendation, Plaintiff has not submitted a notice with the Court that he has provided additional descriptive information in an attempt to assist with the identification of the unknown defendants, despite his deadline to do so lapsing on May 24, 2019. Plaintiff also failed to timely seek leave to amend his complaint to identify the unknown defendants. His deadline to do so expired on May 28, 2019. The Court also notes that in Plaintiff's motions for an extension of time to amend, he did not indicate he had made any efforts to identify the unknown defendants. For these reasons, the Court concludes Plaintiff has failed to prosecute his case as to the unknown defendants (Jane Doe Nurses 1, 2, and 15, John/Jane Doe Medical Staff 3, John Doe Sgt. 16, and John/Jane Doe Medical Staff 7). Plaintiff was warned that his failure to identify the unknown defendants would result in their dismissal for failure to prosecute. Accordingly, and pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, the Court recommends these defendants be dismissed with prejudice. See Lucien v. Breweur, 9 F.3d 26, 28 (7th Cir. 1993) (dismissal is a "feeble sanction" if it is without prejudice).
RECOMMENDATIONS
For the foregoing reasons, it is RECOMMENDED that Jane Doe Nurses 1, 2, and 15, John/Jane Doe Medical Staff 3, John Doe Sgt. 16, and John/Jane Doe Medical Staff 7 be DISMISSED WITH PREJUDICE.
If this Report and Recommendation is adopted in its entirety, Plaintiff will be proceeding on the following claims:
Count One: Eighth Amendment deliberate indifference to medical needs claim against Defendants Monjie, Threadgill, Lang, Kulis, Waller, Little, Westfall, Rogers, Mears, Moldenhauer, Marshall, Shah, Hawkins, Siddiqui, Lafone, and Wexford for failing to adequately address the injuries that Plaintiff sustained on May 11, 2014 and the chronic pain he continues to experience.
Count Three: First Amendment retaliation claim against Mears and Lang for refusing to
provide Plaintiff with medical care in retaliation for his filing lawsuits.
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). DATED: October 23, 2019
/s/ _________
Hon. Reona J. Daly
United States Magistrate Judge