Merritte v. Kessell et al

Filing 339

ORDER: This case is DISMISSED with prejudice for failure to prosecute. The Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Magistrate Judge Reona J. Daly on 10/15/2018. (ely)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CALVIN MERRITTE,
Plaintiff,
v.
C/O KESSEL, et al.,
Defendants.

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Case No. 12-263-RJD

ORDER
DALY, Magistrate Judge:
Plaintiff, Calvin Merritte, a former inmate in the custody of the Illinois Department of
Corrections (“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983, alleging his constitutional
rights were violated while he was incarcerated at Lawrence Correctional Center. Plaintiff is
proceeding on the following claims:
Count 1:

Defendants Kessel and Gangloff retaliated against him for exercising his
First Amendment right to file grievances by labeling him as a snitch and
otherwise harassing him;

Count 3:

Defendant Hodge violated Merritte’s Eighth Amendment rights by failing
to protect Merritte from the retaliatory conduct of Defendants Kessel and
Gangloff.

On January 5, 2018, Attorney Nathaniel Schmitz was assigned as counsel for Plaintiff. On
March 30, 3018, Plaintiff was released from custody. On September 25, 2018, counsel for
Plaintiff informed the Court that in recent months he had made multiple attempts to reach Plaintiff
via phone and mail and Plaintiff had not responded.
The Court issued an Order on September 25, 2018, requiring Plaintiff to show cause and
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explain why this matter should proceed given his failure to notify his counsel of his current contact
information and to assist with the preparation of his case for trial (Doc. 338). He was warned that
his failure to file a response to the Show Cause Order “will result in dismissal of this lawsuit with
prejudice.” As of this date, no response has been received, and there is no indication that the
Court’s Order was not delivered to Plaintiff.
Federal Rule of Civil Procedure 41(b) provides for involuntary dismissal for failure to
prosecute an action or to comply with court orders. Under 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).
The Seventh Circuit has identified several factors a court should consider before entering an
involuntary dismissal, including:
the frequency of the plaintiff’s failure to comply with deadlines; whether the
responsibility for mistakes is attributable to the plaintiff herself or to the plaintiff’s
lawyer; the effect of the mistakes on the judge’s calendar; the prejudice that the
delay caused to the defendant; the merit of the suit; and the consequences of
dismissal for the social objectives that the litigation represents. Aura Lamp &
Lighting Inc. v. Int’l Trading Corp., 325 F.3d 903, 908 (7th Cir. 2003).
Though dismissal is left up to the discretion of district courts, courts are strongly
encouraged to provide an explicit warning before a case is dismissed; especially where the litigant
is pro se. Fischer v. Cingular Wireless, LLC, 446 F.3d 663, 665 (7th Cir. 2006); see also In re
Bluestein & Co., 68 F.3d 1022, 1025 (7th Cir. 1995).
Based upon a review of the record and upon consideration of the applicable law, the Court
will dismiss this case for failure to prosecute. The Court finds that the Plaintiff’s inaction and
unwillingness to communicate with his counsel demonstrates a clear record of delay and
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contumacious conduct that has needlessly delayed this litigation. Plaintiff was provided an
explicit warning that his failure to respond to the Court’s Show Cause Order would result in
dismissal.

While the Court notes that less severe sanctions are available, they would be

unavailing as it is apparent that Plaintiff has lost interest in litigating this matter against these
Defendants. Moreover, Defendants would be unreasonably prejudiced if this matter were allowed
to languish on the Court’s docket any longer.
Accordingly, this case is DISMISSED WITH PREJUDICE. The Clerk of Court is
DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: October 15, 2018
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge

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