Opinion
Case No. 20-cv-00963-JPG
10-27-2020
KEVIN McDONALD, #0136437, Plaintiff, v. SHANNON WOLFF, JASON JUENGER, and AUSTIN PECK, Defendants.
ORDER DISMISSING CASE GILBERT, District Judge :
On September 21, 2020, Plaintiff Kevin McDonald filed a Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983, along with a Motion for Leave to Proceed in forma pauperis ("IFP Motion") (Doc. 2) and Motion for Recruitment of Counsel (Doc. 3). In the Complaint, Plaintiff brings claims for alleged constitutional deprivations that occurred in connection with his arrest, criminal prosecution, and detention at Randolph County Jail. (Doc. 1).
A Notice and Order was entered at the time the case was opened. (Doc. 5). Among other things, Plaintiff was advised of his obligation to notify the Court of any address changes within seven (7) days of any change. (Id.). He was also warned that failure to do so could result in dismissal of his case. (Id.). The Notice and Order was sent to Plaintiff but returned undeliverable. (Docs. 5 and 11).
All mail from the Court has been returned "undeliverable" to Plaintiff. This includes a Notice and Consent to Proceed Before a Magistrate Judge Form (Doc. 4), an Order Extending Deadline to file the Notice and Consent to Proceed Before a Magistrate Judge Form (Doc. 10), and an Order to file additional trust fund information (Doc. 6), among other things.
On October 9, 2020, the Court entered the following order:
ORDER TO SHOW CAUSE: Plaintiff has not provided the Court with his updated address in violation of an order to do so. (See Doc. 5). One or more documents mailed to Plaintiff by the Court have been returned as undeliverable. (See Docs. 6 and 7). Plaintiff is hereby ORDERED to SHOW CAUSE on or before OCTOBER 26, 2020, why this case should not be dismissed as a whole for failure to comply with a court order and to prosecute his claims. Plaintiff's failure to respond to this Order will result in dismissal of the case pursuant to Fed. R. Civ. P. 41(b). The Clerk is DIRECTED to transmit a copy of this Order to Plaintiff as his last known address. Show Cause Response due by 10/26/2020.(Doc. 9) (emphasis added). The Show Cause Order was returned to the Court undeliverable on October 22, 2020. (Doc. 12).
The Court has received no communication from Plaintiff since he filed his Complaint. He has failed to update his address since commencing the action, and he has taken no other steps to otherwise litigate this matter. The Court will not allow this matter to linger indefinitely. This action shall be dismissed without prejudice based on Plaintiff's failure to comply with the Court's Orders to update his address (Doc. 5) and to Show Cause (Doc. 9). See FED. R. CIV. P. 41(b); Lucien v. Brewer, 9 F.3d 26, 28 (7th Cir. 1993) (stating dismissal is a "feeble sanction" if it is without prejudice; "Rule 41(b) states the general principle that failure to prosecute a case should be punished by dismissal of the case with prejudice."). Plaintiff has failed to comply with the Court's Orders (Docs. 5 and 9) and also failed to prosecute his claims.
Disposition
IT IS ORDERED that this action is DISMISSED without prejudice, based on Plaintiff's failure to comply with multiple Court Orders (Docs. 5 and 9) and his failure to prosecute his claim(s) herein. See FED. R. CIV. P. 41(b). The dismissal of this action does not count as a "strike" under 28 U.S.C. § 1915(g).
IT IS ORDERED that Plaintiff's Motion for Recruitment of Counsel (Doc. 3) and Motion for Leave to Proceed in forma pauperis (Doc. 2) are TERMINATED. However, Plaintiff is ADVISED that his obligation to pay the filing fee for this action was incurred at the time the action was filed, regardless of subsequent developments in the case. Accordingly, the $400.00 filing fee remains due and payable. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
The Clerk's Office is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: October 27, 2020
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge