Rivers v. Armor Correctional Staff et al

Filing 32

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 3/19/2019 GRANTING 30 defendant Chybowski's motion to dismiss. Case dismissed without prejudice under Civil L.R. 41(c) for failure to diligently pursue. (cc: all counsel, via mail to Deshireo Rivers at Fox Lake Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DESHIREO TYVEONCE RIVERS,
Plaintiff,
v.

Case No. 17-cv-459-pp

BRIAN CHYBOWSKI, DDS,
Defendant.
______________________________________________________________________________
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS (DKT. NO. 30)
AND DISMISSING CASE WITHOUT PREJUDICE
______________________________________________________________________________
Plaintiff Deshireo Rivers, who is representing himself, filed a civil rights
complaint on March 30, 2017 Dkt. No. 1. He amended the complaint on
September 15, 2017. Dkt. No. 12. The court screened the amended complaint
and allowed him to proceed on an Eighth Amendment claim for deliberate
indifference to serious medical needs against defendant Chybowski. Dkt. No.
15. On July 26, 2018 the court issued a scheduling order, setting a discovery
deadline of November 30, 2018. Dkt. No. 22. On the date of the deadline—
November 30, 2018—the defendant filed a motion to dismiss for failure to
prosecute, indicating that the plaintiff has not responded to discovery. Dkt. No.
24.
On January 29, 2019, the court issued an order to show cause, directing
that by the end of the day on February 20, 2019, the plaintiff either had to
respond to the defendant’s discovery demands or explain why he could not do
so. Dkt. No. 29. The court warned the plaintiff that if the defendant did not
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receive the plaintiff’s response materials by the end of the day on February 20,
or the court did not receive a statement from the plaintiff stating good cause for
failing to respond to the defendant, the court may dismiss the case based on
the plaintiff’s failure to diligently pursue it under Civil L.R. 41(c). Id. at 2.
February 20, 2019 came and went, and the court did not receive
anything from the plaintiff. On March 11, 2019, the defendant filed a motion to
dismiss, indicating that the plaintiff had not responded to his request for
discovery or contacted defense counsel at all. Dkt. No. 30 at 2.
Civil L. R. 41(c) of the Eastern District of Wisconsin states, “Whenever it
appears to the Court that the plaintiff is not diligently prosecuting the action,
the Court may enter an order of dismissal with or without prejudice . . . .” The
plaintiff did not respond to the defendants’ discovery requests by the February
20 deadline, and has not explained to the court why he hasn’t done so; this
indicates to the court that he no longer wishes to prosecute his case.
The court GRANTS the defendant’s motion to dismiss the case. Dkt. No.
30.
The court ORDERS that this case is DISMISSED without prejudice due
to the plaintiff’s failure to diligently pursue it. Civil L.R. 41(c). The plaintiff may
ask this court to reinstate the case within twenty-one days of the date of this
order; if he does so, he must state good cause for his failure to provide
discovery or respond to this court’s order.
If the plaintiff does not ask this court for reinstatement within twentyone days of the date of this order, this order and the judgment to follow are
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final. A dissatisfied party may appeal this court’s decision to the Court of
Appeals for the Seventh Circuit by filing in this court a notice of appeal within
30 days of the entry of judgment. See Federal Rule of Appellate Procedure 3, 4.
This court may extend this deadline if a party timely requests an extension and
shows good cause or excusable neglect for not being able to meet the 30-day
deadline. See Federal Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. The court cannot extend this deadline. See Federal Rule of Civil
Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b) must
be filed within a reasonable time, generally no more than one year after the
entry of the judgment. The court cannot extend this deadline. See Federal Rule
of Civil Procedure 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin, this 19th day of March, 2019.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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