Gebrai v. Shah et al

Filing 35

ORDER GRANTING 32 Motion to Dismiss filed by Defendants Angel Rector, Angelia Bruns, and Dr. Vipin Shah. This action is DISMISSED with prejudice. The 29 Motion for Summary Judgment filed by Defendants is DENIED as Moot. The case is CLOSED, and the Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Judge Nancy J. Rosenstengel on 6/14/2017. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBEL GEBRAI,
Plaintiff,
vs.
VIPIN SHAH, CHRISTINE BROWN,
ANGELIA BRUNS, ANGEL RECTOR,
and UNKNOWN PARTIES,
Defendants.

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Case No. 3:16-CV-751-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on Defendants Angel Rector, Angelia Bruns, and
Dr. Vipin Shah’s Motion to Dismiss (Doc. 32). For the reasons set forth below, the motion
is granted.
BACKGROUND
Plaintiff Robel Gebrai, a former inmate of the Illinois Department of Corrections
(“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging his constitutional rights
were violated while he was incarcerated at Pinckneyville Correctional Center
(“Pinckneyville”). Gebrai’s complaint alleges that Defendants were deliberately
indifferent to his serious eye condition.
Soon after his complaint was filed, Gebrai filed a Notice of Change of Address
advising the Court that he would be paroled on September 16, 2016, and his address
should be updated to 2N252 Amy Avenue, Glen Ellyn, Illinois 60137 (Doc. 12). Gebrai’s

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address was timely updated in the Court’s docketing system. The Court has not received
any filings from Gebrai subsequent to his Notice of Change of Address.
On December 22, 2016, Defendants Bruns, Rector, and Shah filed a motion to
compel indicating Gebrai failed to respond to their written discovery served on October
18, 2016, related to the question of exhaustion (see Doc. 22). Defendants asked the Court
for an order compelling Gebrai to provide responses. Defendants’ motion was granted,
and the Court ordered Gebrai to provide responses to Defendants’ written discovery
originally served on October 18, 2016—by February 22, 2017. The Court warned Gebrai
that “his failure to comply with this Order and provide said responses may result in the
imposition of sanctions, including dismissal of his claims against Defendants” (Doc. 28).
Defendants Bruns, Rector, and Shah filed a motion for summary judgment on the
issue of exhaustion on February 13, 2017 (Doc. 29). Plaintiff failed to file a response and,
in light of this failure, the Court cancelled the hearing set pursuant to Pavey v. Conley, 544
F.3d 739 (7th Cir. 2008) (Doc. 33). On March 16, 2017, Defendants Bruns, Rector, and
Shah filed the motion to dismiss now before the Court. Gebrai has not filed a response to
the motion, despite being provided ample time and opportunity to do so.
LEGAL STANDARD
Federal Rule of Civil Procedure 41(b) provides for involuntary dismissal 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
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(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, 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).
DISCUSSION
Based on a review of the record and upon consideration of the applicable law, the
Court dismisses this action for failure to prosecute. First, Gebrai has exhibited disregard
for court orders. In particular, Gebrai was ordered to respond to Defendants’ written
discovery on the issue of exhaustion by February 22, 2017. Defendants assert, and Gebrai
has not contradicted their assertion, that Gebrai wholly failed to respond to their
discovery requests in contravention of the Court’s order. The Court also notes that
Gebrai has failed to respond to Defendants’ motion for summary judgment and motion
to dismiss. Further, Gebrai failed to pay his initial partial filing fee of $39.95 by the
deadline of February 3, 2017. Gebrai was warned that his failure to do so may result in
dismissal of this action (see Doc. 23, p. 1).

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The Court finds that the conduct described above demonstrates a clear record of
delay and contumacious conduct that has needlessly prolonged this litigation. While the
Court acknowledges Gebrai has been paroled since September 2016, such circumstance
does not excuse his failure to litigate this matter and respond to Court orders.
Significantly, there is no indication that any of the Court’s mailings have been returned
as undeliverable (and such circumstance would not necessarily relieve Gebrai of his
duties in litigating this matter).
While there are lesser sanctions available, the Court finds they would be
unavailing as Gebrai has clearly lost interest in litigating this matter (he has not filed
anything since September 12, 2016). Moreover, the Court finds Defendants would be
prejudiced if this matter were allowed to languish on the Court’s docket any longer. For
these reasons, and after consideration of the relevant factors cited by the Seventh Circuit
regarding involuntary dismissal, the Court finds Gebrai has clearly delayed this matter
and engaged in contumacious conduct warranting dismissal pursuant to Rule 41(b).
CONCLUSION
Defendant Angel Rector, Angelia Bruns, and Dr. Vipin Shah’s Motion to Dismiss
(Doc. 32) is GRANTED, and this action is DISMISSED with prejudice. The case is
CLOSED, and the Clerk of Court is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
DATED: June 14, 2017
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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