Cardenas v. Kelley et al

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATIONS: The Court ADOPTS Judge Williams' Report and Recommendation (Doc. 42 ) in its entirety, GRANTS Defendants' oral motion to dismiss (Doc. 41), and DISMISSES this case without prej udice under Federal Rule of Civil Procedure 41(b) for failure to prosecute. All claims and Defendants having been dismissed without prejudice (in the threshold Order and this Order), the Clerk's Office shall close the case. Signed by Chief Judge Michael J. Reagan on 10/3/2017. (rah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GILBERT CARDENAS,
Plaintiff,
vs.
DR. TARIQ, and
LEAH HAMMELL,
Defendants.

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Case No. 15-cv-1191-MJR-SCW

ORDER ADOPTING R&R AND
DISMISSING CASE FOR WANT OF PROSECUTION
REAGAN, Chief Judge:
Two years ago, Gilbert Cardenas filed a pro se lawsuit in this Court under 42
U.S.C. 1983, alleging deprivations of his federally-secured constitutional rights. On
preliminary review of the complaint under 28 U.S.C. 1915(e), the undersigned
dismissed the claims against two of four Defendants – STA Kelley and Laurie Irose –
without prejudice. The lawsuit proceeded against the remaining two Defendants – Dr.
Tariq and Leah Hammell. An answer was filed, motions were ruled on, a discovery
schedule was entered, trial was set.
In early August 2017, Judge Williams set a status conference for August 8, 2017.
Defendants Tariq and Hammell appeared through counsel, but Plaintiff’s recruited
counsel advised the Court that he had not been able to locate or communicate with
Plaintiff.

Judge Williams ordered Plaintiff to show cause by September 1, 2017 why

this case ought not be dismissed for want of prosecution. Judge Williams also set an incourt hearing for September 1, 2017 (see Doc. 35).

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Plaintiff did not appear at the September 1st hearing, and his recruited counsel
reported that he had not been able to reach Plaintiff. The show cause hearing was reset
for September 8, 2017. When Plaintiff again failed to appear for that hearing and his
recruited counsel again reported that his attempts to communicate with Plaintiff had all
failed, Defendants moved to dismiss this case for want of prosecution (see Docs. 40-41).
Now before the Court is a Report and Recommendation (R&R) issued by
Magistrate Judge Stephen C. Williams on September 13, 2017 (Doc. 42), which
recommends that the undersigned District Judge grant Defendants’ September 8, 2017
oral motion to dismiss this case for lack of prosecution. The R&R notes, inter alia, that
Plaintiff “appears to have no interest in prosecuting this suit,” has “failed to notify his
attorney of his whereabouts,” and has failed to return calls/communications when his
lawyer contacted him. He also failed to keep the clerk’s office apprised of any address
change, despite being plainly warned that failure to do so might result in dismissal of
this case (see Doc. 9, p. 9).
Although Rule 41(b) dismissals for failure to prosecute a case (or failure to
comply with a court order or the Federal Rules of Civil Procedure) typically are made
with prejudice, Judge Williams recommends that the undersigned dismiss this case
without prejudice, given Plaintiff’s “detention in a mental health facility, and the
circumstances leading to this recommended disposition” (Doc. 42, p. 3).
The R&R plainly stated that any objection must be filed by October 2, 2017.
That date has passed, and no objection was filed.

The undersigned need not conduct

de novo review of the R&R. 28 U.S.C. 636(b)(1)(C)(A judge shall make a de novo

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determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.); Thomas v. Arn, 474 U.S. 140 (1985);
Johnson v. Zema Systems Corp., 170 F.3d 734, 741 (7th Cir. 1999); Video Views Inc., v.
Studio 21, Ltd., 797 F.2d 538 (7th Cir. 1986).
The Court ADOPTS Judge Williams' Report and Recommendation (Doc. 42) in
its entirety, GRANTS Defendants’ oral motion to dismiss (Doc. 41), and DISMISSES
this case without prejudice under Federal Rule of Civil Procedure 41(b) for failure to
prosecute. All claims and Defendants having been dismissed without prejudice (in the
threshold Order and this Order), the Clerk’s Office shall close the case.
IT IS SO ORDERED.
DATED October 3, 2017.

s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

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