United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISMISSING ACTION AND DIRECTING ENTRY OF FINAL
William T. Lawrence, United States District Judge.
reasons explained below, dismissal for failure to prosecute
is appropriate in this action. The defendants' motion to
dismiss, Dkt. No. 53, is granted.
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.
plaintiff was released from incarceration in January of 2017
and provided a new address to the Court. Dkt. No. 38.
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.
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.
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 follows:
On September 30. 2016. Plaintiff initiated this suit. (Doc.
1.) All the Corizon Defendants. with the exception of
Vanatti. answered on December 12. 2016. and moved to dismiss
because Plaintiff had filed a separate proceeding in Indiana
State Court based on the same allegations. (Docs. 25, 27-28.)
Plaintiff opposed this motion on January 4, 2017. (Docs.
36-37.) Then on January 18, 2017. Plaintiff filed a notice
providing his new address after release from IDOC. (Doc. 38.)
This is the current address listed on the docket for
Plaintiff. Since that date.
Defendants have actively litigated this suit, including a
motion for summary judgment on the preliminary issue of
exhaustion. (Docs. 50-51.) Plaintiff, however, has not taken
any action. At this point, a year has elapsed.
Dkt. No. 54, pp. 1-2.
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 plaintiffs
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.
Failure to Prosecute
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 ...