Davis v. Illinois Department of Corrections et al

Filing 39

ORDER adopting 38 Report and Recommendations. The defendants' oral motions to dismiss are GRANTED. Thus, the action is DISMISSED WITH PREJUDICE. The Clerk of Court is DIRECTED to enter judgment reflecting the same. Signed by Judge David R. Herndon on 7/2/2018. (ceh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARTIN DAVIS,
Plaintiff,
v.

No. 17-cv-894-DRH-DGW

DR. BUTALID, LT. MUNBOWER,
NURSE JOHN DOE #1 and
NURSE JOHN DOE #2,
Defendants.
MEMORANDUM and ORDER
HERNDON, District Judge:
This matter comes before the Court on the Report and Recommendation
(“the Report”) issued by Magistrate Judge Donald G. Wilkerson on June 6, 2018
(doc. 38). The Report recommends that the Court grant defendants’ oral motions
to dismiss and that the action be dismissed with prejudice for plaintiff’s failure to
prosecute his claims. Based on the applicable law, the record, and the following,
the Court ADOPTS the Report (doc. 38) in its entirety and DISMISSES the case
with prejudice.
Concisely, plaintiff Davis brought this pro se action for deprivation of his
constitutional rights under 42 U.S.C. § 1983 while incarcerated at Pickneyville
Correctional Center. The Court screened Davis’ complaint pursuant to 28 U.S.C.
§ 1915A and plaintiff is proceeding on three separate Eighth Amendment claims
for deliberate indifference to medical conditions stemming from a diagnosis of
Bell’s palsy.

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Thereafter, both named defendant Munbower and defendant Butalid filed
motions for summary judgment based on plaintiff’s failure to exhaust
administrative remedies. See docs. 29; 32. At the same time as these filings,
both defendants sent Davis Federal Rule of Civil Procedure Rule 56 Notices,
informing plaintiff of the repercussions of not responding to the summary
judgment motions. See docs. 31; 34. The motions and notices were all served to
Davis at his new address in Champaign, Illinois. See Doc. 28, Notice of Change of
Address. A hearing on the motions was set for May 22, 2018, doc. 35, and notice
of the hearing was sent to plaintiff.
Plaintiff failed to respond in writing to the summary judgment motions by
the original deadline and the Court sua sponte granted plaintiff an extension to
respond to the motions until April 30, 2018. Doc. 36. Plaintiff again failed to
respond. On May 22nd, counsel for defendants appeared for the scheduled motion
hearing and plaintiff Davis failed to appear. See doc. 37. Both defendants orally
moved for dismissal at the hearing, which the Court took under advisement. Id.
After the hearing, Magistrate Judge Wilkerson issued his Report pursuant
to 28 U.S.C. § 636(b)(1)(B), recommending the Court grant the oral motions to
dismiss, finding that plaintiff Davis failed to prosecute his case. Plaintiff has not
had contact with the Court since filing his notice of change of address despite
being served with the summary judgment motions and with three separate notices
outlining the consequences of ignoring the defendants’ filings. See docs. 31; 34;
36. Additionally, plaintiff failed to appear for the motion hearing. His actions

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have demonstrated that plaintiff Davis no longer intends to pursue his claims:
“The Court finds that Davis’ failure to respond to the motions or appear for the
scheduled hearing evidence that he is no longer interested in pursuing his claims.
In light of Davis’ apparent abandonment of this suit, the Court finds it
unnecessarily burdensome to require Defendants to continue to defend against
this action.” Doc. 38 at 4.
The Report was sent to the parties with a notice informing them of their
right to appeal by way of filing “objections” within 14 days of service the Report.
To date, none of the parties have filed objections. The period in which to file
objections has expired. Therefore, pursuant to 28 U.S.C. § 636(b), this Court
need not conduct a de novo review. Thomas v. Arn, 474 U.S. 140, 149-52 (1985).
Accordingly, the Court ADOPTS the Report in its entirety (doc. 38) and
GRANTS the defendants’ oral motions to dismiss. The action is dismissed with
prejudice. Clerk to enter judgment accordingly.
IT IS SO ORDERED.

Judge Herndon
2018.07.02
13:09:16 -05'00'
United States District Judge

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