PURDY v. CORIZON HEALTH et al
ENTRY Dismissing Action and Directing Entry of Final Judgment - Given the plaintiff's total abandonment of this action, the defendants' motion to dismiss, Dkt. No. 53 , is granted (SEE ENTRY). Signed by Judge William T. Lawrence on 3/9/2018. Copy to Plaintiff via US Mail. (DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
) No. 2:16-cv-0376-WTL-DLP
FARRAH BUNCH, KAYLA
MCDERMIT, STAPHANIE VANNATTI, )
Entry Dismissing Action and Directing Entry of Final Judgment
For the reasons explained below, dismissal for failure to prosecute is appropriate in this
action. The defendants’ motion to dismiss, Dkt. No. 53, is granted.
Plaintiff filed this civil rights action on September 30, 2016, alleging that his constitutional
rights were violated by the defendants when they refused to provide treatment for his chronic pain
while he was an inmate at the Putnamville Correctional Facility. The Court screened the complaint
and permitted an Eighth Amendment claim for deliberate indifference to a serious medical need
to proceed. The defendants filed a motion to dismiss due to a prior parallel action pending in
Indiana State court on December 12, 2016. The plaintiff filed a response in opposition on January
4, 2017. Dkt. No. 27; Dkt. No. 36.
The plaintiff was released from incarceration in January of 2017 and provided a new
address to the Court. Dkt. No. 38.
The Court denied the defendants’ motion to dismiss on May 19, 2017. The defendants filed
an answer on May 26, 2017, and asserted the affirmative defense that the plaintiff failed to exhaust
his administrative remedies. The defendants filed a motion for summary judgment based on
exhaustion on June 30, 2017. Dkt. No. 45.
Despite notice regarding his right to respond to and submit evidence in opposition to
motion for summary judgment, the plaintiff failed to file a response to the defendants’ motion for
summary judgment. On October 5, 2017, the Court granted in part and denied in part the
defendants’ motion for summary judgment. Dkt. No. 51. The next day, the Court issued an Entry
Setting Pre-Trial Schedule. Dkt. No. 52.
On January 23, 2018, the defendants filed a motion to dismiss pursuant to Federal Rule of
Civil Procedure Rule 41(b) and Local Rule 41-1. They state the basis of their motion to dismiss as
Dkt. No. 54, pp. 1-2.
On January 26, 2018, the Court gave notice to the plaintiff pursuant to Local Rule 41-1 that
this action was subject to dismissal for lack of prosecution based on the plaintiff’s failure to take
any action for 6 months. The plaintiff was instructed that he had through February 26, 2018, to
notify the Court that he intends to prosecute this action and that failure to do so would result in
dismissal with no further notice. The plaintiff did not respond and the Court’s notice was not
returned to the Court marked undeliverable.
II. Failure to Prosecute
Under Fed. R. Civ. P. 41(b), a defendant may move to dismiss an action if the plaintiff fails
to prosecute the case. The Seventh Circuit has listed several factors district courts should consider
before dismissing a case under Rule 41(b):
1) whether the wrongdoer (or her counsel) received “due warning” that such a
sanction was a possibility; 2) the frequency and magnitude of the wrongdoer's
failure to comply with deadlines and other court orders; 3) the efficacy of less
severe sanctions; 4) whether the misconduct prejudiced the other party or other
litigants on the court's docket; and 5) the likely merits of the wrongdoer's case.
Ball v. City of Chicago, 2 F.3d 752, 759-60 (7th Cir. 1993).
More specifically, Local Rule 41-1 allows for the Court to dismiss an action with costs for
failure to prosecute if: (1) no activity occurs for six months; (2) the Court or clerk notifies the
parties that the case will be dismissed for failure to prosecute; and (3) at least 28 days have passed
between the notice and dismissal. Here, no activity has occurred in this action since the plaintiff
changed his address with the Court on January 18, 2017. The Court notified the plaintiff on January
26, 2018, that his action would be dismissed for failure to prosecute. The Court gave the plaintiff
through February 26, 2018, to notify the Court he intends to prosecute this action. Dkt. No. 55. To
date, the plaintiff has not responded to the Court’s notice. Given the plaintiff’s total abandonment
of this action, the defendants’ motion to dismiss, Dkt. No. 53, is granted.
IT IS SO ORDERED.
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
5155 E. 65th Street
Indianapolis, IN 46220
Carol A. Dillon
BLEEKE DILLON CRANDALL, P.C.
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