Mosby v. Wexford Health Sources, Inc. et al
ORDER GRANTING 119 MOTION to Dismiss for Lack of Prosecution filed by Christine Brooks, Mark Baker, Vipin K. Shah, M.D., James Fenoglio, Wexford Health Sources Inc, and Elaine Hardy-Burcham; FINDING AS MOOT 111 MOTION for Summary Judgment filed by Christine Brooks, Mark Baker, Vipin K. Shah, M.D., James Fenoglio, Wexford Health Sources Inc, Elaine Hardy-Burcham; and FINDING AS MOOT 117 MOTION for Summary Judgment filed by Marc Hodge, Salvadore A Godinez. This action is DISMISSED with prejudice. Judgment will be entered accordingly. Signed by Magistrate Judge Donald G. Wilkerson on 9/19/2016. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WEXFORD HEALTH SOURCES, INC.,
SALVADORE A. GODINEZ, JAMES
FENOGLIO, MARC HODGE, VIPIN K.
SHAH, M.D., MARK BAKER, CHRISTINE )
BROOKS, and ELAINE
Case No. 3:14-cv-699-DGW
WILKERSON, Magistrate Judge:
Now pending before the Court is the Motion to Dismiss for Plaintiff’s Failure to Prosecute
filed by Defendants Wexford Health Sources, Inc., (“Wexford”), James Fenoglio, M.D., Vipin
Shah, M.D., Mark Baker, D.O., Christine Brooks, and Elaine Hardy-Burcham (“Wexford
Defendants”) (Doc. 119). For the reasons set forth below, the Motion to Dismiss is GRANTED.
On December 9, 2013, Plaintiff, through retained counsel, filed his complaint pursuant to
42 U.S.C. § 1983 alleging his constitutional rights were violated while he was in the custody of the
Illinois Department of Corrections (“IDOC”), incarcerated at Lawrence Correctional Center
(“Lawrence”). More specifically, Plaintiff’s complaint alleges that medical and prison staff
members at Lawrence were deliberately indifferent in failing to provide surgery for Plaintiff’s
inguinal hernia (See Docs. 1 and 69).
On September 21, 2015, counsel for Plaintiff sought leave to withdraw from this matter
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citing a telephone conversation in which Plaintiff informed counsel that he no longer wished to be
represented by him or his firm (See Doc. 103). The Court took counsel’s motion to withdraw
under advisement, directing Plaintiff to file a response to said motion stating whether he agreed
with counsel’s representations (See Doc. 104). Plaintiff was advised that if counsel was allowed
to withdraw from this matter he was under an obligation to obtain new counsel within 21 days or
he would be proceeding pro se (Id.). Plaintiff never filed a response to the motion to withdraw
and, as such, it was granted on November 10, 2015 (See Doc. 109). No attorney has filed a notice
of appearance on behalf of Plaintiff since his former counsel was allowed to withdraw.
Defendants Baker, Brooks, Fenoglio, Hardy-Burcham, Shah, and Wexford filed a motion
for summary judgment on November 16, 2015 (Doc. 111) and Defendants Godinez and Hodge
filed a motion for summary judgment on January 11, 2016 (Doc. 117). Plaintiff’s responses to
Defendants’ motions were due on December 21, 2015 and February 16, 2016, respectively.
Subsequently, Defendants Baker, Brooks, Fenoglio, Hardy-Burcham, Shah, and Wexford filed the
motion to dismiss for lack of prosecution that is now before the Court (Doc. 119). Plaintiff’s
response to this motion was due April 7, 2016.
On June 16, 2016, the Court ordered Plaintiff to show cause why his failure to meet Court
deadlines, including failing to file responses to Defendants’ motions for summary judgment,
should be excused (See Doc. 125). Plaintiff filed a response to the Court’s show cause order on
July 14, 2016, explaining that his incarceration has limited his ability to obtain “the proper
paperwork” and obtain new counsel (Doc. 126). Although Plaintiff’s response was meager, the
Court accepted Plaintiff’s response and, sua sponte, granted Plaintiff an extension of time, up to
and including August 12, 2016, to file his responses to Defendants’ motions for summary
judgment. On August 12, 2016, Plaintiff filed a motion to continue the trial date, which was moot
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as the trial date was vacated in March, 2016, while the Court was awaiting a response to
Defendants’ motions for summary judgment (See Docs. 124 and 131). As of the date of this
Order, Plaintiff has not filed a response to Defendants’ motions for summary judgment or the
Wexford Defendants’ motion to dismiss.
Federal Rule of Civil Procedure 41(b) provides for involuntary dismissal of an action 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). 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, said 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 on a review of the record and upon consideration of the applicable law, it is
recommended that this action should be dismissed for failure to prosecute. First, Plaintiff has
exhibited disregard for court orders. In particular, Plaintiff was directed to file a response to his
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former counsel’s motion to withdraw, but failed to do so. Moreover, Plaintiff has failed to file
responses to Defendants’ pending motions for summary judgment and motion to dismiss, despite
being provided ample time, opportunity, and notice.
Indeed, Plaintiff has not engaged in
litigation in any meaningful way since counsel was allowed to withdraw in November, 2015.
Accordingly, Defendants’ dispositive motions have remained pending for a significant period of
time (over eight months), with no response from Plaintiff. Due to Plaintiff’s abject failure to
substantively engage in this litigation, follow this Court’s directions, and provide responses to the
pending dispositive motions, the Court finds that Defendants would be prejudiced if this matter
were to proceed at this point. While the Court notes there are lesser sanctions available, such
sanctions would be unavailing as it appears that Plaintiff has lost interest in litigating this matter.
For the above-mentioned reasons, and after consideration of the relevant factors cited by
the Seventh Circuit regarding involuntary dismissal, the Court finds that there has been a clear
record of delay and contumacious conduct in this matter and dismissal is warranted pursuant to
For the reasons set forth above, Defendant Baker, Brooks, Fenoglio, Hardy-Burcham,
Shah, and Wexford’s Motion to Dismiss for Failure to Prosecute (Doc. 119) is GRANTED;
Defendant Baker, Brooks, Fenoglio, Hardy-Burcham, Shah, and Wexford’s Motion for Summary
Judgment (Doc. 111) is MOOT; and Defendant Godinez and Hodge’s Motion for Summary
Judgment (Doc. 117) is MOOT. This case is DISMISSED WITH PREJUDICE. The Clerk of
Court is DIRECTED to enter judgment in favor of Defendants and against Plaintiff, and close this
case on the Court’s docket.
IT IS SO ORDERED.
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DATED: September 19, 2016
DONALD G. WILKERSON
United States Magistrate Judge
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