Wilkins v. Overall et al

Filing 112

ORDER granting in part and denying in part 100 Motion for Sanctions and Adopting 109 Report and Recommendations. Signed by Judge David R. Herndon on 12/18/2018. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH WILKINS,
Plaintiff,
v.

Case No. 3:16-cv-01324-DRH-RJD

LILIAN OVERALL, STEPHANIE
ETCHASON, SETH TOWNSEND
and CRAIG FOSTER,
Defendants.
MEMORANDUM and ORDER
HERNDON, District Judge:
Introduction
Pending before the Court is a November 26, 2018 Report and
Recommendation (“the Report”) issued by Magistrate Judge Reona J. Daly (Doc.
109). Magistrate Judge Daly recommends that the Court grant in part and deny in
part defendants’ joint motion for sanctions (Doc. 100). Specifically, the Report
recommends: (1) that plaintiff be ordered to reimburse counsel for defendant
Overall the cost of the court reporter appearance in the amount of $139.50 by
December 27, 2018 and that the failure to pay will result in the dismissal of his
case for failure to obey a Court Order pursuant to Federal Rule of Civil Procedure
41(b); (2) that defendants be granted leave to reschedule the deposition of plaintiff
and that plaintiff’s failure to comply with Rule 30 and offer complete answers to
each deposition question shall result in the dismissal of this action; (3) that the
discovery deadline be extended to December 27, 2018 and (4) the dispositive
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motion deadline be extended to January 17, 2019. The parties were allowed time
to file objections to the Report. On December 14, 2018, Wilkins filed a pleading
titled “motion to bring notice” which the Court construes as a general objection to
the Report (Doc. 111). Based on the applicable law, the record and the following,
the Court ADOPTS the Report in its entirety.
Legal Standards
The Court’s review of the Report is governed by 28 U.S.C. § 636(b)(1), which
provides in part:
A judge of the court shall make a de novo determination of those
portions
of
the report or
specified
proposed
findings
or recommendations to which objection is made. A judge of the court
may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge. The judge may
also receive further evidence or recommit the matter to the magistrate
judge with instructions.
Fed. R. Civ. P. 72(b) also directs that the Court must only make a de
novo determination of those portions of the report and recommendation to which
specific written objection has been made. Johnson v. Zema Sys. Corp., 170 F.3d
734, 739 (7th Cir. 1999). If no objection or only a partial objection is made, the
Court reviews those unobjected portions for clear error. Id. In addition, failure to
file objections with the district court “waives appellate review of both factual and
legal questions.” Id. Under the clear error standard, the Court can only overturn a
Magistrate Judge's ruling if the Court is left with “the definite and firm conviction
that a mistake has been made.” Weeks v. Samsung Heavy Indus. Co., Ltd., 126
F.3d 926, 943 (7th Cir. 1997).

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An assessment of plaintiff’s objection indicates that he mainly takes umbrage
with the issue of the sanction. In fact, he does not contest the finding of the facts.
He states that he receives $700.00 a month; that he was allowed to proceed in forma
paupers in this case and that he cannot afford to pay for any sanctions. He also
reiterates his medical problems and that he provided a legitimate reason why he
could not attend his deposition. After reviewing the joint motion for sanctions, the
Report and the objection, the Court finds no error or deficiency in either Judge
Daly’s findings of fact or conclusions of law. In fact, Judge Daly provided a sound
analysis.
In the Report, Judge Daly found:
“In this case, while Plaintiff failed to comply with Rules 30 and 33, his
conduct does not necessitate the severe sanction of dismissal at this time. While
the medical records do not indicate that Plaintiff was hospitalized on the date of the
scheduled deposition, they do indicate that when Plaintiff presented on September
9, 2018, he had been experiencing severe symptoms of paranoid schizophrenia for
three days prior. Based on the review of the mental health records, it is
questionable whether Plaintiff could have meaningfully participated in his
deposition on September 7, 2018. Plaintiff, however, should have timely notified
counsel for Defendants of his inability to attend the deposition. The Court has
determined a monetary fine is an appropriate sanction.”
(Doc. 109, p. 4). the Court finds no reason to doubt or find error in Judge Daly’s
determination and agrees with the Report.
Conclusion
Accordingly, the Court ADOPTS the Report in its entirety (Doc. 109). The
Court GRANTS in part and DENIES in part defendants’ joint motion for sanctions
(Doc. 100). The Court ORDERS the following:
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1) that plaintiff must REIMBURSE counsel for defendant Overall the cost of the
court reporter appearance in the amount of $139.50 by December 27, 2018
and that the failure to pay SHALL result in the dismissal of his case for failure
to obey a Court Order pursuant to Federal Rule of Civil Procedure 41(b);
2) that defendants are allowed to reschedule the deposition of plaintiff and that
plaintiff is WARNED that the failure to comply with Federal Rule of Civil
Procedure 30 and offer complete answers to each deposition question SHALL
result in the dismissal of this action;
3) that the discovery deadline is extended to December 27, 2018 and
4) the dispositive motion deadline is extended to January 17, 2019.
IT IS SO ORDERED.

Judge Herndon
2018.12.18 12:19:08
-06'00'
United States District Judge

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