Trainor v. Christianson et al

Filing 42

ORDER DISMISSING CASE consistent with the attached Memorandum and Order. This case is DISMISSED with prejudice pursuant to Federal Rule of Civil Procedure 41(b). Defendants' motion for summary judgment (Doc. 37) is rendered MOOT. The case is CLOSED, and the Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Magistrate Judge Mark A. Beatty on 9/9/2020. (spl)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
COREY TRAINOR
Plaintiff,
vs.
MONICA CHRISTIANSON AND
OFFICER ROVENSTEIN,
Defendants.

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Case No. 3:17 -CV-01182 -MAB

MEMORANDUM AND ORDER
BEATTY, Magistrate Judge:
This matter is before the Court sua sponte for case management purposes. For the
reasons set forth below, this action is DISMISSED with prejudice pursuant to Rule 41(b).
The case is CLOSED, and the Clerk of Court is DIRECTED to enter judgment
accordingly.
FACTUAL BACKGROUND
Plaintiff Corey Trainor, an inmate with the Illinois Department of Corrections
(“IDOC”), filed this pro se lawsuit under 42 U.S.C. § 1983 on June 14, 2017 naming himself
and five other prisoners as co-Plaintiffs (Doc. 1). In his complaint, Plaintiff alleges that
Defendants violated his, and his co-Plaintiffs’, First Amendment rights by preventing
them from receiving certain publications. Plaintiff Trainor also raises a retaliation claim
(Id.).
After a threshold review, pursuant to 28 U.S.C. § 1915A, Plaintiff’s claims were
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severed into two separate cases, as the Court found that Plaintiff’s retaliation claims
(Counts 1 and 2) against Defendants Christianson and Rovenstein were unrelated to the
claims against two other Defendants, Gebke and Mueller (Doc. 1). 1 See FED. R. CIV. P.
20(a)(2). Accordingly, Plaintiff was allowed to proceed on two claims against Defendants
Rovenstein and Christianson while his third claim against Gebke and Mueller was
severed (Doc. 1).
On January 21, 2020, Defendants Christianson and Rovenstein filed a motion for
summary judgment, with Plaintiff’s response due by February 24, 2020 (Docs. 37, 38).
Plaintiff did not file a response to Defendant’s motion for summary judgment by the
February 24, 2020 deadline.
On August 4, 2020, the Court ordered Plaintiff to show cause, in writing, by
September 2, 2020 as to why his case should not be dismissed for failure to prosecute. See
FED. R. CIV. P. 41(b). Plaintiff was also explicitly warned that if he failed to respond to this
Order or file a response to Defendant’s motion for summary judgment, the case would
be dismissed (Doc. 41). To date, Plaintiff has not filed anything with the Court in response
to this Order or Defendants’ motion for summary judgment.

Plaintiff’s claims are as follows: 1) First Amendment retaliation claim against Christianson for diverting
Plaintiff Trainor’s newspapers to other inmates and sending Trainor’s photograph packed to Internal
Affairs after Trainor filed a grievance against her; 2) First Amendment retaliation claim against
Rovenstein for refusing to release any of Plaintiff Trainor’s photographs to him in September 2016,
because Plaintiff Trainor requested Rovenstein to document the confiscation of the “inappropriate”
photos; and 3) First Amendment claim against Gebke and Mueller for rejecting Trainor’s book and
magazine in August 2015 and rejecting Turner’s magazine in August 2016 where the rejection was not
reasonably related to legitimate penological interests and (as to Plaintiff Trainor’s material) was based on
racially and culturally biased criteria.
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ANALYSIS
Under the Federal Rule of Civil Procedure 41(b), a court may dismiss an action
with prejudice “if the plaintiff fails to prosecute or to comply with [the Federal Rules of
Civil Procedure] or any court order.” FED. R. CIV. P. 41(b). “The court should exercise this
right sparingly” and should dismiss a case “only when there is a clear record of delay or
contumacious conduct, or when other less drastic sanctions have proven unavailing” and
an explicit warning has been provided to the plaintiff that dismissal is imminent. Salata
v. Weyerhaeuser Co., 757 F.3d 695, 699 (7th Cir. 2014) (quoting Webber v. Eye Corp., 721 F.2d
1067, 1069 (7th Cir. 1983)); Gabriel v. Hamlin, 514 F.3d 734, 736 (7th Cir. 2008)
(quoting Sharif v. Wellness Intern. Network, Ltd., 376 F.3d 720, 725 (7th Cir. 2004)).
In this matter, Plaintiff is proceeding pro se, and the Court is mindful of the
difficulties he faces in doing so. But those difficulties do not excuse him from complying
with Court-imposed deadlines or communicating with the Court. Plaintiff was directed
to respond to Defendants’ motion for summary judgment. He failed to do so by the
deadline despite being warned of the consequences. In fact, in an Order entered on
August 4, 2020, the Court reminded Plaintiff that, at that time, his response to the motion
for summary judgment was due on or before February 24, 2020 (Doc. 41). In this Order,
the Court inadvertently outlined that this deadline was subject to the two Administrative
Orders issued as a result of the COVID-19 pandemic, which were not entered until later
in March after Plaintiff’s deadline, and, therefore, Plaintiff had an additional 60 days to
respond to the motion for summary judgment. This mistake, though, worked in Plaintiff’s
favor, as the Court mistakenly believed that Plaintiff had until April 24, 2020 to respond
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to Defendants’ motion for summary judgment. Even with this extension of time, Plaintiff
still failed to respond to the Court’s Order prompting him to show cause why he has
failed to respond to the motion for summary judgment.
The Court noted that instead of responding to the Court’s Show Cause Order,
Plaintiff could simply file a response to the summary judgment motion (Doc. 41).
Plaintiff’s failure to file anything in response to the Defendants’ summary judgment
motion or the Court’s Show Cause Order, however, does not appear to be out of the
ordinary for this case. In fact, the Court has reviewed the docket and as best the Court
can tell, Plaintiff has not communicated with the Court in any fashion since October 2018
(e.g. Doc. 25). Under the circumstances presented here, the Court can only conclude that
Plaintiff is no longer interested in pursuing this litigation, and the Court is convinced that
dismissal is appropriate. Accordingly, this action will be dismissed with prejudice
pursuant to Fed. R. Civ. P. 41(b). See James v. McDonald's Corp., 417 F.3d 672, 681 (7th Cir.
2005) (affirming the district court’s decision to dismiss as case for failure to prosecute its
case or abide by the court’s orders and noting the court’s inherent “authority under
Federal Rule of Civil Procedure 41(b) to enter a sua sponte order of dismissal for lack of
prosecution.”).
CONCLUSION
This case is DISMISSED with prejudice pursuant to Federal Rule of Civil
Procedure 41(b). Defendants’ motion for summary judgment (Doc. 37) is rendered
MOOT. The case is CLOSED, and the Clerk of Court is DIRECTED to enter judgment
accordingly.
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NOTICE
If Plaintiff wishes to contest this Order, he has two options. He can ask the Seventh
Circuit to review the order, or he can first ask the undersigned to reconsider the Order
before appealing to the Seventh Circuit.
If Plaintiff chooses to go straight to the Seventh Circuit, he must file a notice of
appeal within 30 days from the entry of judgment. FED. R. APP. P. 4(a)(1)(A). The deadline
can be extended for a short time only if Plaintiff files a motion showing excusable neglect
or good cause for missing the deadline and asking for an extension of time. FED. R. APP.
P. 4(a)(5)(A), (C). See also Sherman v. Quinn, 668 F.3d 421, 424 (7th Cir. 2012) (explaining
the good cause and excusable neglect standards); Abuelyaman v. Illinois State Univ., 667
F.3d 800, 807 (7th Cir. 2011) (explaining the excusable neglect standard).
On the other hand, if Plaintiff wants to start with the undersigned, he should file
a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). The
motion must be filed within twenty-eight (28) days of the entry of judgment, and the
deadline cannot be extended. FED. R. CIV. P. 59(e); 6(b)(2). The motion must also comply
with Rule 7(b)(1) and state with sufficient particularity the reason(s) that the Court should
reconsider the judgment. Elustra v. Mineo, 595 F.3d 699, 707 (7th Cir. 2010); Talano v. Nw.
Med. Faculty Found., Inc., 273 F.3d 757, 760 (7th Cir. 2001). See also Blue v. Hartford Life &
Acc. Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012) (“To prevail on a Rule 59(e) motion to amend
judgment, a party must clearly establish (1) that the court committed a manifest error of
law or fact, or (2) that newly discovered evidence precluded entry of judgment.”) (citation
and internal quotation marks omitted).
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So long as the Rule 59(e) motion is in proper form and submitted on-time, the 30day clock for filing a notice of appeal will be stopped. FED. R. APP. P. 4(a)(4). The clock
will start anew once the undersigned rules on the Rule 59(e) motion. FED. R. APP. P.
4(a)(1)(A), (a)(4), (a)(4)(B)(ii). To be clear, if the Rule 59(e) motion is filed outside the 28day deadline or “completely devoid of substance,” the motion will not stop the clock for
filing a notice of appeal; it will expire 30 days from the entry of judgment. Carlson v. CSX
Transp., Inc., 758 F.3d 819, 826 (7th Cir. 2014); Talano v. Northwestern Medical Faculty
Foundation, Inc., 273 F.3d 757, 760–61 (7th Cir. 2001); Martinez v. Trainor, 556 F.2d 818, 819–
20 (7th Cir. 1977). Again, this deadline can be extended only on a written motion by
Plaintiff showing excusable neglect or good cause.
The Court has one more bit of instruction regarding the appeals process. If Plaintiff
chooses to appeal to the Seventh Circuit, he can do so by filing a notice of appeal in this
Court. FED. R. APP. P. 3(a). The current cost of filing an appeal with the Seventh Circuit is
$505.00. The filing fee is due at the time the notice of appeal is filed. FED. R. APP. P. 3(e). If
Plaintiff cannot afford to pay the entire filing fee up front, he must file a motion for leave
to appeal in forma pauperis (“IFP motion”) along with a recent statement for his prison
trust fund account. See FED. R. APP. P. 24(a)(1)(C). The IFP motion must set forth the issues
Plaintiff plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If he is allowed to
proceed IFP on appeal, he will be assessed an initial partial filing fee. 28 U.S.C. §
1915(b)(1). He will then be required to make monthly payments until the entire filing fee
is paid. 28 U.S.C. § 1915(b)(2).

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IT IS SO ORDERED.
DATED: September 9, 2020

s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge

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