Lamon v. David

Filing 20

MEMORANDUM AND ORDER, the Court REJECTS the R & R (Doc. 18 ) and REFERS this case to Magistrate Judge Frazier for further proceedings. Signed by Judge J. Phil Gilbert on 7/16/2014. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANDREW LAMON,
Plaintiff,
vs.

Case No. 13-cv-1247-JPG

DR. ALFONSO DAVID,
Defendant.

MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“R & R”) (Doc.
18) of Magistrate Judge Philip M. Frazier recommending this Court dismiss this case for failure
to prosecute pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff Andrew Lamon filed an
objection to the R & R. For the following reasons, the Court rejects the R & R.
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). Because Lamon filed an
objection to the R & R, the Court will undertake a de novo review.
On January 13, 2014, this Court entered an order directing Lamon to make certain
payments on the filing fee assessed in this case (Doc. 8). Lamon failed to make those payments,
and Magistrate Judge Frazier entered a show cause order directing Lamon to show cause on or

before April 4, 2014, why this case should not be dismissed for failure to pay the initial partial
filing fee. Lamon failed to respond to Magistrate Judge Frazier’s show cause order. On May 6,
2014, Magistrate Judge Frazier entered his R & R recommending this case be dismissed for
failure to prosecute citing Lamon’s failure to respond to the show cause order.
On May 16, 2014, Lamon filed an objection to the R & R. He does not explain why he
failed to respond to Magistrate Judge Frazier’s R & R or why he failed to pay the filing fee as
directed. Rather, Lamon forwarded the $10.07 initial partial filing fee and asked that the case
not be dismissed. The R & R, however, recommends that his case be dismissed for failing to
respond to a show cause order, not simply for his failure to pay the filing fee. Lamon has offered
no reason for his failure to respond to Magistrate Judge Frazier’s show cause order even after
Magistrate Judge Frazier recommended this case be dismissed for Lamon’s failure to respond to
the show cause order. In this instance, the Court will reject the R & R and allow Lamon’s case
to proceed. However, the Court warns Lamon that in the future his case may be subject to
dismissal for failure to respond to a court order.
Accordingly, the Court REJECTS the R & R (Doc. 18) and REFERS this case to
Magistrate Judge Frazier for further proceedings.
IT IS SO ORDERED.
DATED: July 16, 2014

s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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