Walton v. Director of the Illinois Department of Corrections et al

Filing 67

ORDER ADOPTING 60 REPORT AND RECOMMENDATIONS with modifications. Defendants' Motion for Sanctions (Doc. 60 ) is GRANTED in part and DENIED in part, in that this case is dismissed, but Plaintiff will not be ordered to reimburse Defendants  6;150 as a sanction for failing to attend his deposition. Defendants' Motion to Stay Discovery (Doc. 61 ) and Motion to Compel Discovery (Doc. 62 ) are DENIED as moot. This action is DISMISSED with prejudice. Signed by Judge Nancy J. Rosenstengel on 1/12/2018. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IVAN J. WALTON,
Plaintiff,
vs.
DIRECTOR OF THE ILLINOIS
DEPARTMENT OF CORRECTIONS,
K. HUNTER, WARDEN ETIENNE,
MAJOR DENNISON, B. ALLARD,
and J. BARWICK,
Defendants.

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Case No. 3:16-CV-00451-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pending before the Court is the Report and Recommendation of Magistrate Judge
Donald G. Wilkerson (Doc. 65), which recommends that Defendants’ Motion for
Sanctions (Doc. 60) be granted, Defendants’ Motion to Stay Discovery (Doc. 61) and
Motion to Compel Discovery (Doc. 62) be denied as moot, and that this action be
dismissed with prejudice. For the following reasons, the Court adopts the Report and
Recommendation, but modifies the disposition to address Defendants’ request for
reimbursement of $150 in court reporter fees.
On April 25, 2016, Plaintiff Ivan Walton filed an amended complaint pursuant to
42 U.S.C. § 1983 alleging his constitutional rights were violated by officials at Shawnee
Correctional Center when they deprived him of 141.5 days of earned good conduct
credit and, in doing so, unnecessarily prolonged his incarceration in state prison (Doc. 1,
pp. 8-18). On July 25, 2016, Walton provided the Court with a new address since he had

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been released from prison (Doc. 25, p. 1). Defendants served Walton with a notice of
deposition at this address on August 29, 2017; however, Walton did not appear for the
scheduled deposition (Doc. 60, p. 2). As a result, Defendants incurred $150 in court
reporter fees. On September 6, 2017, Defendants served Walton with written discovery
requests, to which Walton did not respond (Docs. 61, 62). Defense counsel sent
correspondence to Walton in an effort to confer with him regarding the outstanding
discovery requests but received no response (Doc. 62, p. 2).
On December 18, 2017, Magistrate Judge Wilkerson held a hearing for Walton to
appear and show cause as to why the case should not be dismissed for failure to comply
with discovery (Doc. 63). Despite notice of the hearing and a warning that the failure to
appear may result in sanctions, including dismissal of this action, Walton did not
appear. On December 18, 2017, Magistrate Judge Wilkerson issued the Report and
Recommendation currently before the Court, recommending that this action be
dismissed with prejudice. Objections to the Report and Recommendation were due
January 5, 2018; no objections were filed.
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); see also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). Where no
objections to the Report and Recommendation are made, however, this Court need not
conduct a de novo. 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 district judge may accept, reject, or modify

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the recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b)(3).
The Court agrees with Magistrate Judge Wilkerson and finds no clear error in his
conclusion that Defendants’ motion for sanctions should be granted to the extent they
request dismissal of this case. Walton failed to respond to discovery and to appear for his
scheduled deposition. Walton was then ordered to appear at the Show Cause Hearing
and was warned of the consequences for failing to do so (Doc. 63). Walton’s failure to
participate in discovery and to comply with the Court’s orders requires dismissal of this
action.
Nevertheless, the Court will not require Walton to pay the $150 in court reporter
fees as requested by Defendants. 1 Pursuant to Rule 37(d)(3), the party failing to attend
its own deposition “must” pay reasonable expenses, “unless the failure was
substantially justified or other circumstances make an award of expenses unjust.” FED. R.
CIV. P. 37 (d)(3). In this case, the Court issued an Order on February 13, 2017, granting
Walton’s motion to proceed in forma pauperis (“IFP”) and ordering Walton to pay an
initial partial filing fee (Doc. 53). Because Walton was no longer incarcerated, the Order
further required Walton to pay the remaining balance of the $350 filing fee or file an
updated motion to proceed IFP by February 27, 2017. The Order warned that failure to
comply with those directions would result in dismissal of the case. Walton never paid
his initial partial filing fee or filed an updated motion to proceed IFP. Thus, Walton
reasonably could have assumed this case had already been dismissed (and perhaps

Magistrate Judge Wilkerson’s Report and Recommendation did not address Defendants’ request for
reimbursement of the $150 fee.

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desired that it be dismissed, considering he was no longer incarcerated) when he
received his notice of deposition in August 2017. Yet, the Court did not dismiss the case
as it had warned. Under these circumstances, the Court finds it unjust to award expenses
to Defendants.
CONCLUSION
The Court ADOPTS the Report and Recommendation entered by Magistrate
Judge Donald G. Wilkerson with the above-referenced modification (Doc. 65).
Defendants’ Motion for Sanctions (Doc. 60) is GRANTED in part and DENIED in part,
in that this case is dismissed, but Walton will not be ordered to reimburse Defendants
$150 as a sanction for failing to attend his deposition. Defendants’ Motion to Stay
Discovery (Doc. 61) and Motion to Compel Discovery (Doc. 62) are DENIED as moot.
This action is DISMISSED with prejudice, and the Clerk of Court is DIRECTED to
enter judgment accordingly.
IT IS SO ORDERED.
DATED: January 12, 2018
_____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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