Williams v. Caldwell et al

Filing 52

ORDER ADOPTING IN PART 50 Report and Recommendations and GRANTING 47 Motion to Dismiss for Lack of Prosecution. This action is DISMISSED with prejudice pursuant to Rule 41(b) for failure to prosecute. The Court declines to order Plaintiff to pay Defendants $150.00 for costs incurred when Plaintiff failed to appear for his deposition. Signed by Judge Nancy J. Rosenstengel on 7/11/17. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT E. WILLIAMS,
Plaintiff,
vs.
LT. GEPHART, et al.,
Defendants.

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Case No. 14-1416-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the Report and Recommendation of United States
Magistrate Judge Donald Wilkerson (Doc. 50), which recommends granting Defendants’
motion to dismiss for lack of prosecution and ordering Plaintiff to pay $150.00 to
Defendants for costs incurred when Plaintiff failed to appear for his deposition.
On November 22, 2016, Defendants served Plaintiff with their first notice of
deposition, setting Plaintiff’s deposition for December 13, 2016. Plaintiff informed
Defendants that he could not appear on that date. On March 1, 2017, Defendants served
Plaintiff with their second notice of deposition, setting his deposition for March 17, 2017, at
the Attorney General’s Office in Springfield, Illinois. Plaintiff failed to appear for his
deposition or otherwise inform defense counsel that he would be unable to attend. Defense
counsel incurred expenses in the amount of $150.00 for the missed deposition.
Defendants still had not heard from Plaintiff by April 10, 2017, when they filed their
motion to dismiss for failure to prosecute under Rule 41(b) of the Federal Rules of Civil
Procedure (Doc. 47). Plaintiff did not file a response to the motion to dismiss within the

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thirty day timeframe. See SDIL-LR 7.1. On May 24, 2017, Magistrate Judge Wilkerson issued
an Order to Show Cause directing Plaintiff to inform the Court by June 7, 2017, why this
matter should not be dismissed and he should not be ordered to reimburse defense counsel
in the amount of $150.00 (Doc. 49). Plaintiff was warned that the failure to respond may
result in dismissal of this action (Doc. 49). Plaintiff did not file a response to the Order to
Show Cause by the deadline. Consequently, Magistrate Judge Wilkerson issued the Report
and Recommendation currently before the Court, and recommended dismissing this case
for failure to prosecute and sanctioning Plaintiff in the amount of $150.00 immediately
payable to the Illinois Attorney General (Doc. 50). Objections to the Report and
Recommendation were due on July 5, 2017. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(2);
SDIL-LR 73.1(b). Plaintiff did not file an objection.
Where neither timely nor specific objections to the Report and Recommendation are
made, the court need not conduct a de novo review. See Thomas v. Arn, 474 U.S. 140 (1985).
Instead, the court should review the Report and Recommendation for clear error. Johnson v.
Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999). The court may then “accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1).
The undersigned has reviewed Magistrate Judge Wilkerson’s Report and
Recommendation, as well as the procedural history of this case, and agrees with his
recommendation to dismiss this case with prejudice pursuant to Rule 41(b) for failure to
prosecute. The undersigned disagrees, however, with Magistrate Judge Wilkerson’s
recommendation that Plaintiff should be sanctioned $150.00. Plaintiff was indigent when he
filed this case (see Docs. 4, 6, 7, 10). He was released from prison during the course of this

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litigation, and the undersigned would be surprised if his financial situation improved in
any significant way since his release. 1 Furthermore, the undersigned does not know the
specifics of why Plaintiff missed the deposition and stopped communicating with defense
counsel and the Court. Without knowing the impact a monetary penalty would have on
Plaintiff or whether his conduct in missing the deposition truly warrants a penalty, the
Court is loath to impose such a penalty.
Accordingly, the Court ADOPTS in part and REJECTS in part the Report and
Recommendation (Doc. 50). Defendants’ motion to dismiss (Doc. 47) is GRANTED, and
this action is DISMISSED with prejudice pursuant to Rule 41(b) for failure to prosecute.
The Court declines to order Plaintiff to pay Defendants $150.00 for costs incurred when
Plaintiff failed to appear for his deposition.
IT IS SO ORDERED.
DATED: July 11, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

See, e.g., David J. Harding, et al., Making Ends Meet After Prison, 33 J. POL’Y ANALYSIS & MGMT. 440, 443,
450 (2014) (finding former prisoners who were the subject of a research study struggled considerably to meet
even minimal needs for food and shelter and rarely achieved sustained economic security); CHRISTY VISHER, ET
AL., URBAN INST., EMPLOYMENT AFTER PRISON: A LONGITUDINAL STUDY OF RELEASEES IN THREE STATES, p. 6 (2008),
available at http://www.urban.org/sites/default/files/publication/32106/411778-Employment-after-PrisonA-Longitudinal-Study-of-Releasees-in-Three-States.PDF) (reporting that 55% of released prisoners studied in
three states—Illinois, Ohio, and Texas—were unemployed eight months after release); Joan Petersilia, When
Prisoners Return to Communities: Political, Economic, and Social Consequences (Nov. 2000), available at
http://www.nationaltasc.org/wp-content/uploads/2012/11/When-Prisoners-Return-to-the-CommunityPolitical-Economic-and-Social-Consequences-NIJ.pdf (“The majority of inmates leave prison with no savings,
no immediate entitlement to unemployment benefits, and few job prospects. One year after release, as many as
60 percent of former inmates are not employed in the legitimate labor market.”).
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