United States District Court, N.D. Indiana, Fort Wayne Division
REPORT AND RECOMMENDATION
Collins, United States Magistrate Judge
Plaintiff Paul Sykes is advancing various constitutional
claims against Defendants LaGrange County Circuit Court,
LaGrange County Superior Court, LaGrange County, Bonnie
Brown, and Colleen Tracy. (DE 2). Due to Sykes's
disregard for this Court's Orders and apparent
disinterest in pursuing this case, and pursuant to 28 U.S.C.
§ 636(b)(1)(b), Federal Rule of Civil Procedure 72(b),
and Northern District of Indiana Local Rule 72-1(b), the
undersigned Magistrate Judge recommends that this case be
DISMISSED as a sanction under Federal Rule of Civil Procedure
16(f) and for failure to prosecute under Rule 41(b). This
Report and Recommendation is based on the following facts and
principles of law.
Factual and Procedural Background
who was represented by counsel at the time, filed this
lawsuit in January 2016 in Marion County Superior Court,
alleging various constitutional claims against Defendants
stemming from the judicial process following his arrest in
November 2012. (DE 2). The case was subsequently removed to
this Court. (DE 1).
17, 2016, Sykes's counsel filed a motion to withdraw (DE
14), which the Court granted after a hearing at which Sykes
appeared telephonically (DE 18). The Court stayed the case
for 30 days to afford Sykes time to retain new counsel. (DE
18). Sykes was advised that if he failed to cause new counsel
to appear on his behalf by July 3, 2016, he would be deemed
to be proceeding pro se. (DE 18). The Court set the case for
a preliminary scheduling conference on July 26, 2016. (DE
15, 2016, Sykes filed a motion requesting an extension of
time within which to retain new counsel; he explained that he
was incarcerated and would be released on June 17, 2016. (DE
24). The Court granted Sykes's motion, extending the stay
to July 29, 2016. (DE 25). On June 20, 2016, Sykes filed a
notice of change of address to 2438 CR #50, Auburn, IN 46706.
(DE 26). The Court subsequently reset the preliminary
pretrial conference to August 3, 2016 (DE 27), and then to
August 10, 2016 (DE 28).
August 10, 2016, Sykes failed to telephonically appear for
the preliminary pretrial conference. (DE 29). The Court set
the matter over for a show cause hearing and scheduling
conference on September 13, 2016. (DE 29; DE 30). The Court
issued an Order directing Sykes to appear in person at the
hearing and show cause why he should not be sanctioned under
Rule 16(f)(1) for his failure to appear at the August 10th
conference. (DE 30). Sykes was advised that if he failed to
appear at the September 13th hearing, additional sanctions
may issue, up to and including dismissal of his
lawsuit. (DE 30).
failed to appear at the September 13th hearing. (DE 35). The
Court then set the matter over to October 3, 2016, and
ordered Sykes to appear in person to show cause why he should
not be sanctioned for twice failing to appear. (DE 35; DE
36). Sykes was also ordered to file a written statement with
the Court no later than September 28, 2016, stating why he
should not be sanctioned under Rule 16(f)(1) for his twice
failing to appear. (DE 36). Sykes was again warned that his
failure to appear in person for the October 3rd hearing,
failure to file the written statement, or failure to show
cause may result in dismissal of his case. (DE 36).
failed to appear at the October 3rd hearing (DE 37), and to
date, he has not filed the written statement.
Rule of Civil Procedure 16(f)(1) provides that the court may,
on its own motion, “issue any just orders, including
those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party .
. . (A) fails to appear at a scheduling or other pretrial
conference; . . . or (C) fails to obey a scheduling or other
pretrial order.” Specifically, Rule 37(b)(2)(A)(v)
authorizes the court to dismiss an action, in whole or part,
as a sanction. The “ultimate sanction” of
dismissal “is reserved for cases in which the offending
party has demonstrated wilfulness, bad faith, or
fault.” Long v. Steepro, 213 F.3d 983, 986
(7th Cir. 2000) (citation omitted).
from sanctions, a district court also has authority under
Rule 41(b) to dismiss a case sua sponte for lack of
prosecution. See James v. McDonald's Corp., 417
F.3d 672, 681 (7th Cir. 2005). Dismissal for failure to
prosecute is appropriate “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. 2003) (internal
quotation marks and citation omitted).
despite this Court's Orders requiring his presence, Sykes
failed to appear at three hearings or conferences-the August
10th preliminary pretrial conference, the September 13th show
cause hearing and pretrial conference, and the October 3rd
show cause hearing and pretrial conference-and never offered
any explanation for his absences, suggesting at least fault,
if not some wilfulness, and resulting in a clear record of
delay. Furthermore, a court may infer a lack of prosecutorial
intent from, among other factors, the failure to appear at a
scheduling conference. GCIU Employer Ret. Fund v. Chicago
Tribune Co., 8 F.3d 1195, 1199 (7th Cir. 1993); see
Galvez v. Veltri, No. 05-CV-68 DRH, 2006 WL 1989801, at
*2 (S.D. Ill. July 13, 2006) (dismissing case for want of
prosecution where the plaintiff failed to keep the court
apprised of his current mailing address).
Sykes's failure to appear at the scheduling conferences,
by itself, is sanctionable under Rule 16(f)(1)(A) with
dismissal, a sanction that the Court explicitly warned him
may be imposed in its Orders setting the September 13th and
October 3rd conferences. After he failed to appear at the
August 10th conference, the Court gave Sykes two additional
opportunities to show cause for ...