Dees v. Simpson et al
MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS 53 ; granting 46 MOTION for Summary Judgment filed by Cierra Simpson, Michael McClelland. Fort dismissed from this case. Count one dismissed. Remainder of case dismissed for failure to prosecute. Clerk of Court to enter judgment accordingly. Signed by Judge J. Phil Gilbert on 7/11/2013. (dka, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Case No. 11-cv-893-JPG
CIERRA SIMPSON, DANIELLE
GOODWIN, ERIC FORT, CURTIS MOORE,
MICHAEL MCCLELLAND, ERIC PLOTT,
and CHRISTOPHER PHEMISTER,
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“R & R”) (Doc.
53) of Magistrate Judge Philip M. Frazier recommending that the Court grant defendants
Michael McClelland and Cierra Simpson’s motion for summary judgment (Doc. 46), dismiss
McClelland, dismiss defendant Eric Fort pursuant to Federal Rule of Civil Procedure 4(m),
dismiss Count One, and dismiss the remainder of this case for failure to prosecute pursuant to
Federal Rule of Civil Procedure 41(b).
The Court may accept, reject or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are
made. The Court has discretion to conduct a new hearing and may consider the record before the
magistrate judge anew or receive any further evidence deemed necessary. Id. “If no objection or
only partial objection is made, the district court judge reviews those unobjected portions for clear
error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
The Court notes that Dees filed a response (Doc. 54) to defendants McClelland and
Simpson’s motion for summary judgment on July 8, 2013. The motion is undated; however, the
simultaneously filed declaration is dated July 4, 2013. Dees’ response was due on May 2, 2013.
He did not file a motion for an extension of time and offers no reason for filing his response over
two months late. Accordingly, pursuant to Local Rule 7.1, the Court construes Dees’ failure to
file a timely response as an admission of the merits of defendants’ motion for summary
judgment. See Local Rule 7.1(c) (requiring a response to a motion for summary judgment be
filed 30 days after service of the motion and stating a failure to timely respond may be deemed
an admission of the merits of the motion); see also Tobel v. City of Hammond, 94 F.3d 360, 362
(7th Cir. 1996) (“[T]he district court clearly has authority to enforce strictly its Local Rules, even
if a default results.”).
In addition to failing to timely respond to the motion for summary judgment, Dees has
failed to object to the R & R. The Court has reviewed the entire file and finds that the R & R is
not clearly erroneous. For the foregoing reasons, the Court
ADOPTS the R & R in its entirety (Doc. 53);
GRANTS McClelland and Simpson’s motion for summary judgment (Doc. 46);
DISMISSES Fort from this case pursuant to Federal Rule of Civil Procedure 4(m);
DISMISSES Count One;
DISMISSES the remainder of this case for failure to prosecute pursuant to Federal Rule
of Civil Procedure 41(b); and
DIRECTS the Clerk of Court to enter judgment accordingly.
IT IS SO ORDERED.
DATED: July 11, 2013
s/ J. Phil Gilbert
J. PHIL GILBERT
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