Johnson v. Lakin et al

Filing 67

ORDER ADOPTING 65 REPORT AND RECOMMENDATION: The case is DISMISSED without prejudice. All pending motions are DENIED as moot. Signed by Judge Nancy J. Rosenstengel on 10/1/2015. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
)
)
)
Plaintiff,
)
)
v.
)
)
JOHN LAKIN, GARY BOST, MARK
SPURGEON, ROBERT BLANKENSHIP, )
)
MATTHEW DOVER, MARK RYAN,
)
TIM WALKER, and JODY COLLMAN,
)
)
Defendants.
LENNIL L. JOHNSON,

Case No. 15-CV-297–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 G. Wilkerson (Doc. 65), recommending that the
undersigned dismiss this case without prejudice. The Report and Recommendation was
entered on June 12, 2015. On June 23, 2015, Plaintiff filed a document entitled “Plaintiffs
Objections to Report and Recommendation” (Doc. 66).
Plaintiff Lennil Johnson filed this pro se civil action alleging that Defendants failed
to provide him with proper medical care, retaliated against him for seeking medical care,
and failed to provide him with access to courts. On March 23, 2015, the Court conducted
a threshold review of Plaintiff’s Complaint, and Plaintiff was permitted to proceed with
his Fourteenth Amendment claim against Defendants Lakin, Bost, Spurdon,
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Blankenship, Dover, Ryan, Walker, and Collman for acting with deliberate indifference
to Plaintiff’s serious medical needs (Doc. 7).
On June 8, 2015, Plaintiff filed a Notice of Voluntary Dismissal (Doc. 64). In that
document, Plaintiff requests that the Court “dismiss this pending civil complaint
without prejudice and for the furtherance of justice.” (Doc. 64, p. 2). On June 12, 2015,
Magistrate Judge Wilkerson issued a Report and Recommendation that the Court should
dismiss the case without prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil
Procedure because Plaintiff has indicated that his claims will be better litigated in state
court (Doc. 65, p. 2). Magistrate Judge Wilkerson also stated that, considering the
procedural posture of this case, no special conditions are warranted (Id.).
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);
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). Where neither timely nor specific
objections to the Report and Recommendation are made, however, this Court need not
conduct a de novo review of the Report and Recommendation. 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). A judge 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).

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Here, Plaintiff has filed a document titled “Plaintiffs Objections to Report and
Recommendation” (Doc. 66). In that document, however, Plaintiff does not specifically
object to Magistrate Judge Wilkerson’s recommendation that the case be dismissed.
Instead, Plaintiff confirms his desire to “voluntarily dismiss his pending civil complaint
without prejudice” as he has “chosen to pursue state remedies.” (Doc. 66, p. 9).1
Under Federal Rule of Civil Procedure 41(a)(2), the plaintiff may request
dismissal of an action, and the court may dismiss an action on terms that it deems
proper. FED. R. CIV. P. 41(a)(2). Dismissal under Rule 41(a)(2) is within the sound
discretion of the district court. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 177 (7th Cir. 1994).
“A court abuses its discretion only if the defendant shows it will suffer ‘plain legal
prejudice.’” McCumber v. Internet Wine & Spirits Co., No. 11-CV-549, 2011 WL 3793645, at
*1 (S.D. Ill. Aug. 24, 2011) (citing Kunz v. DeFelice, 538 F.3d 667, 677 (7th Cir. 2008)).
Here, although Plaintiff has filed a document entitled Objection to the Report and
Recommendation, it is clear that Plaintiff still seeks to voluntarily dismiss his case.
Specifically, in that document, Plaintiff reiterates his request “that he be allowed to
voluntarily dismiss pending civil complaint without prejudice and allow plaintiff to
1Also in Plaintiff’s “Objection,” he reiterates his claims against Defendants and responds to Defendants’
pending Motion to Dismiss for Failure to State a Claim, or in the Alternative, Motion for Summary
Judgment (Doc. 63). Plaintiff also appears to be confused regarding his in forma pauperis (“IFP”) status. On
March 23, 2015, the undersigned granted Plaintiff leave to proceed IFP (Doc. 7). Plaintiff was then assessed
an initial partial filing fee of $14.00 on March 25, 2015 (Doc. 16). On April 23, 2015, Magistrate Judge
Wilkerson denied Plaintiff’s subsequent request for IFP status, noting that the undersigned had already
granted IFP and assessed an initial partial filing fee, which-at that point-had yet to be paid (Doc. 53, p. 3-4).
The undersigned further explained that Plaintiff shall then make monthly payments of 20% of the
preceding month’s income credited to Plaintiff’s prison trust fund account until the $350.00 filing fee is
paid in full (See Doc. 16). (The initial partial filing fee was subsequently paid on April 24, 2015).

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refile if necessary.” (Doc. 66, p. 9). Plaintiff further states that “at this time plaintiff has
chosen to pursue state remedies for the furtherance of justice” (Id.). Magistrate Judge
Wilkerson found that a dismissal without prejudice is appropriate. While the
undersigned is aware that a “Motion to Dismiss for Failure to State a Claim, or in the
Alternative, Motion for Summary Judgment” (Doc. 63) filed by Defendants is currently
pending,

Defendants

have

not

objected

to

Magistrate

Judge

Wilkerson’s

recommendation that the undersigned dismiss this case without prejudice. Because
Defendants have not responded to Plaintiff’s motion or otherwise objected to Magistrate
Wilkerson’s Report and Recommendation, the Court finds it appropriate to adopt
Magistrate Judge Wilkerson’s Report and Recommendation and dismiss this case
without prejudice.
Accordingly, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 65). The case is DISMISSED without prejudice. All pending
motions are DENIED as moot.
IT IS SO ORDERED.
DATED: October 1, 2015
s/ Nancy J. Rosenstengel__________
NANCY J. ROSENSTENGEL
United States District Judge

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