Purnell v. Hohmer et al
ORDER GRANTING 68 MOTION to Dismiss Motion to Dismiss and Motion to Stay the Deadline for Defendants' Motion for Summary Judgment on the Issue of Administrative Exhaustion filed by R/O Hohmer, IDOC. This matter is DISMISSED WITH PREJUDICE. The Clerk of Court is directed to enter judgment accordingly. Signed by Magistrate Judge Reona J. Daly on 9/8/2021. (nmf)
Case 3:20-cv-00640-RJD Document 70 Filed 09/08/21 Page 1 of 4 Page ID #194
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
R/O HOHMER and IDOC,
Case No. 20-CV-640-RJD
MEMORANDUM AND ORDER
DALY, Magistrate Judge:
This matter is before the Court on Defendants’ Motion to Dismiss and Stay the Deadline
for Defendants’ Motion for Summary Judgment on the Issue of Administrative Exhaustion (Doc.
68). For the reasons set forth below, the Motion is GRANTED as to Defendants’ request to
Plaintiff Cornelius Purnell is a former inmate in the custody of the Illinois Department of
Corrections (“IDOC”). Plaintiff filed this action while incarcerated at Shawnee Correctional
Center for alleged deprivations of his constitutional rights and violations of the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq. and the Rehabilitation Act, 29 U.S.C. § 701, et seq.
Plaintiff is proceeding in this action on an Eighth Amendment claim against Defendant Hohmer
for placing Plaintiff in a cell that was not ADA accessible, taking his walker, and leaving him in
inhumane conditions, and an ADA and/or RA claim against IDOC for failing to provide Plaintiff
with an ADA accessible cell, an ADA accessible shower, and ADA access to the law library.
On July 13, 2020, Plaintiff was allowed to proceed in this matter in forma pauperis
(“IFP”), and was assessed an initial partial filing fee of $14.44, which has been paid. In the
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Court’s order granting Plaintiff leave to proceed IFP, Plaintiff was directed to make monthly
payments of 20% of the preceding month’s income credited to Plaintiff’s trust fund account until
the $350.00 filing fee was paid in full.
In the motion to dismiss now before the Court,
Defendants indicate that Plaintiff is no longer in custody and his last payment toward his filing
fee was received on October 30, 2020. Plaintiff has paid $92.09 toward the filing fee, and owes
the remainder of $252.91. Defendants argue dismissal is appropriate due to Plaintiff’s failure to
prosecute and make payments toward his filing fee.
Following the filing of Defendants’ motion, the Court entered an Order explaining that
although he is no longer incarcerated, Plaintiff is still obligated to pay the entire filing fee under
28 U.S.C. § 1915(b)(1). However, because Plaintiff is no longer incarcerated, the undersigned
remarked that the collection mechanism under § 1915(b)(2) is inapplicable. Accordingly, the
undersigned ordered Plaintiff to submit a new motion for IFP by September 3, 2021 to allow the
Court to evaluate Plaintiff’s resources and determine whether to defer collection of the remainder
of the unpaid fee. Plaintiff was warned that his failure to comply with the Court’s order could
result in the imposition of sanctions, including dismissal of this lawsuit.
A motion to proceed IFP was sent to Plaintiff on August 16, 2021. The Court notes there
is nothing in the docket to suggest Plaintiff has not received any of the filings in this matter. As
of the date of this Order, the Court has not received a new motion for IFP, or any other filing by
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.
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2003) (quoting Williams v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir. 1998) (other
citations omitted). Although there is no requirement of graduated sanctions prior to dismissal,
the Court must provide an explicit warning before a case is dismissed. Aura Lamp & Lighting
Inc. v. International Trading Corp., 325 F.3d 903, 908 (7th Cir. 2003) (citing Ball v. City of
Chicago, 2 F.3d 752, 760 (7th Cir. 1993)). Dismissal is the most severe sanction that a court
may apply; as such, its use must be tempered by a careful exercise of judicial discretion. Webber
v. Eye Corp., 721 F.2d 1067, 1069 (7th Cir. 1983).
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).
This Court also has the “inherent authority to dismiss a case sua sponte for a plaintiff’s
failure to prosecute.” O’Rourke Bros. Inc. v. Nesbitt Burns, Inc., 201 F.3d 948, 952 (7th Cir.
2000). Such a dismissal may be made “when there is a ‘clear record of delay or contumacious
behavior.’” Daniels v. Brennan, 887 F.2d 783, 785 (7th Cir. 1989) (internal citations omitted).
In this instance, Plaintiff failed to comply with the Court’s order directing him to provide
an updated motion to proceed IFP by September 3, 2021. Plaintiff has also failed to make any
payments toward his filing fee since October 2020, and has failed to respond to Defendants’
motion to dismiss.
The Court finds that the conduct described above demonstrates a clear record of delay
and contumacious conduct.
While the Court notes there are lesser sanctions available, they would be unavailing as
Plaintiff has clearly lost interest in litigating this matter.
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For the foregoing reasons, Defendants’ Motion to Dismiss and Stay the Deadline for
Defendants’ Motion for Summary Judgment on the Issue of Administrative Exhaustion (Doc. 68)
is GRANTED and this matter is DISMISSED WITH PREJUDICE. The Clerk of Court is
directed to enter judgment accordingly.
IT IS SO ORDERED.
DATED: September 8, 2021
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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