Rhine v. Cross et al

Filing 58

ORDER ADOPTING REPORT AND RECOMMENDATIONS; adopting 51 Report and Recommendations; granting 47 Motion to Dismiss for Lack of Prosecution. The case is DISMISSED with prejudice. All pending motions are DENIED as moot. Signed by Judge Michael J. Reagan on 08/13/2013. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

TRACY RHINE,
Plaintiff,
vs.
ZELDA BELL, LT KIRBY, OFFICER
ROBINSON-TAYLOR, AND ROSALIND
ROBINSON,
Defendants.

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Case No. 12-CV- 0211-MJR-SCW

MEMORANDUM AND ORDER
REAGAN, District Judge:
This matter is before the Court on the Report and Recommendation of United
States magistrate Judge Stephen C. Williams (Doc. 51), recommending that Defendants’
oral motion to dismiss for failure to prosecute be granted, or alternatively, that
Defendants’ Motion for Summary Judgment be granted and the case be dismissed with
prejudice.
On March 8, 2012, Plaintiff filed her pro se Complaint while incarcerated at the
Hazelton Secure Family Facility.

Plaintiff’s claims of excessive force, deliberate

indifference to a serious medical need, failure to protect and conditions of confinement
survived threshold review (Docs. 11, 14). Defendants filed a Motion to Dismiss, or in
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the alternative, Motion for Summary Judgment based on failure to exhaust
administrative remedies on January 25, 2013 (Doc. 34). Plaintiff filed a response to the
motion on February 14, 2013 (Doc. 38).
On May 10, 2013, the Court set a hearing on Defendants’ Motion to Dismiss, or in
the alternative, Motion for Summary Judgment to take place June 3, 2013 at 9:30 a.m.
The Court sent notice of this hearing to Plaintiff at her last known address, which is 2515
Inwood Rd, #115, Dallas, TX 75235 (Doc. 41). Plaintiff last updated the Court with this
address on March 21, 2013, after she was released from prison. The Notice stated that
Plaintiff’s attendance at the hearing was mandatory and that failure to appear may result
in dismissal (Doc. 46). Plaintiff did not appear at the hearing. At that time, Defendants
made an oral Motion to Dismiss for Lack of Prosecution under FED. R. CIV. P. 41 (Doc.
47).
Magistrate Judge Williams’ Report recommends granting Defendants’ oral
motion (Doc. 47) because Plaintiff, despite receiving specific warnings that her case
could be dismissed, failed to appear at the hearing. Judge Williams further noted that
Plaintiff had previously fulfilled her obligations to keep the Court informed of her
whereabouts, and her mail has not been returned “undeliverable” from the
aforementioned address.
Where timely objections are filed, this Court must undertake a de novo review of
the Report and Recommendation. 28 U.S.C. ' 636(b)(1)(B), (C); FED. R. CIV. P. 72(b);

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SDIL-LR 73.1(b); Harper v. City of Chicago Heights, 824 F. Supp. 786, 788 (N.D. Ill.
1993); see also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court Amay
accept, reject or modify the magistrate judge=s recommended decision.@ Harper, 824 F.
Supp. at 788. In making this determination, the Court must look at all of the evidence
contained in the record and Agive >fresh consideration to those issues to which specific
objections have been made.=@

Id., quoting 12 Charles Alan Wright et al., Federal

Practice and Procedure ' 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part).
However, where neither timely nor specific objections to the Report and
Recommendation are made, pursuant to 28 U.S.C. ' 636(b), this Court need not conduct
a de novo review of the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985). While a de novo review is not required here, the Court has considered the
evidence and fully agrees with the findings, analysis, and conclusions of Magistrate
Judge Williams. The record indicates that Plaintiff should have been on notice of the
hearing, as well as the potential repercussions for her failure to attend, and thus the
undersigned District Judge agrees that a dismissal with prejudice is warranted.
Further, the undersigned District Judge agrees with Magistrate Judge Williams’
assessment that the record does not support a finding in Plaintiff’s favor, irrespective of
her failure to appear at the hearing, as she has not submitted any evidence in support of
her arguments for the Court to consider.
The Court ADOPTS Magistrate Judge Williams’ Report and Recommendation

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and GRANTS Defendants’ oral motion for dismissal pursuant to Rule 41 (Doc. 47). The
case is DISMISSED with prejudice and all pending motions are DENIED as moot.
IT IS SO ORDERED.
DATED: August 13, 2013

s/ Michael J. Reagan___________
MICHAEL J. REAGAN
United States District Judge

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