Schneider v. County of Will et al

Filing 364

MEMORANDUM Opinion and Order: Defendants' motion to dismiss this case for want of prosecution 330 , is granted, and this case is dismissed with prejudice. Defendants' remaining pending motions in limine 351 352 , are denied as moot. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 8/25/2016:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
B. MICHAEL SCHNEIDER,
No. 08 C 3054

Plaintiff,

Judge Thomas M. Durkin

v.
COUNTY OF WILL and MICHAEL O’LEARY,
Defendants.

MEMORANDUM OPINION AND ORDER
B. Michael Schneider, pro se, alleges that Defendants violated the Eighth
Amendment when they held him in jail for an extra ten days after a Will County
circuit judge ordered him jailed for criminal contempt. See Schneider v. County of
Will, 528 Fed. App’x 590, 595 (7th Cir. 2013); 366 Fed. App’x 683 (7th Cir. 2010).
Defendants have moved the Court to dismiss Mr. Schneider’s case for want of
prosecution because he has failed to adequately prepare for trial and participate in
preparation of the joint final pretrial memorandum. R. 330. Mr. Schneider walked
out of the last final pretrial hearing in this case on August 18, 2016, after tendering
to the Court and defense counsel a motion to recuse the undersigned judge. The
Court denied Mr. Schneider’s recusal motion. R. 362. In light of Mr. Schneider’s
abandonment of the pretrial process and apparent intent not to continue to
prosecute his case before the undersigned judge, the Court reluctantly grants
Defendants’ motion and dismisses this case with prejudice for want of prosecution.
A review of the lengthy procedural history of this case requires this result.

A court may dismiss an action if a party “is substantially unprepared to
participate—or does not participate in good faith—in [a pretrial] conference.” Fed.
R. Civ. P. 16(f)(1)(B); Fed. R. Civ. P. 37(b)(2)(A)(v). “Because dismissal with
prejudice for want of prosecution is a harsh sanction,” before imposing such a
sanction, courts should “weigh several factors” including “whether the litigant has
ignored previous court orders, the extent of delays, prejudice to other parties, and
the availability of other sanctions.” Rollins v. Murphy, 598 Fed. App’x 449, 450 (7th
Cir. 2015). Whether to dismiss a case for want of prosecution is within the district
court’s discretion. See Schindler v. Advocate Healthcare, 619 Fed. App’x 516, 517
(7th Cir. 2015).
Judge Andersen originally presided over this case, which was filed on May
27, 2008. R. 1. While Judge Andersen was presiding, Mr. Schneider filed a motion
seeking to disqualify defense counsel as improperly appointed by the Will County
State’s Attorney. R. 17. Judge Andersen denied that motion. R. 29. Mr. Schneider’s
motion to vacate Judge Andersen’s order was also denied. R. 40.
Upon Judge Andersen’s retirement the case was reassigned to Judge
Gettleman, and then Judge Dow, who set an initial trial date of December 8, 2014.
That date was vacated when Judge Dow recused himself because of a personal or
familial relationship with Defendants, see R. 243, and the case was transferred to
Judge Marovich. R. 244. Two months later on August 11, 2014, Judge Marovich
exercised his right as a senior judge to request that the case be reassigned. See R.

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250. At that point, the undersigned judge became the fifth judge to preside over the
case. Id.
At a hearing on September 3, 2014, the Court sought to schedule a new trial
date. Mr. Schneider represented to the Court that he had recently been evicted from
his home, but that a trial date in 2015 would be “no problem.” Trial was set for
February 2, 2015. R. 254. One month later on October 2, 2014, Mr. Schneider
sought reconsideration of the ruling Judge Andersen had made six years earlier
denying Mr. Schneider’s motion to disqualify defense counsel. R. 255. The Court
denied the motion for reconsideration on October 28, 2014. R. 261.
On November 25, 2014, Mr. Schneider filed an interlocutory appeal of the
Court’s denial of his motion for reconsideration, without first seeking leave to do so.
R. 263. His decision to file a notice of appeal required the Court to vacate the
February 2, 2015 trial date as the date for a ruling on the interlocutory appeal was
of course unknown. R. 276. The Seventh Circuit denied Mr. Schneider’s appeal as
premature on January 22, 2015. See R. 283. At a status hearing on January 29,
2015, Mr. Schneider represented to the Court that he was seeking a rehearing, and
on that basis the Court deferred scheduling a new trial date. The Seventh Circuit
denied Mr. Schneider’s petition for a rehearing on March 2, 2015. R. 282. The
proceedings were delayed until October 28, 2015, both at the parties’ requests
(including two requests by Mr. Schneider) and because the Court—based on Mr.
Schneider’s statements at the January 29, 2015 hearing—was under the
(apparently mistaken) impression that he intended to file a petition for certiorari to

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the United States Supreme Court. Eventually, the Court, with Mr. Schneider’s
consent, set a new trial date of April 25, 2016 at a hearing on October 28, 2015. R.
292.
As the April 25, 2016 trial date approached, Mr. Schneider renewed his
efforts to have defense counsel disqualified by filing another motion for
reconsideration on this issue on January 15, 2016, see R. 293, which the Court
denied. See R. 301. Mr. Schneider yet again sought reconsideration on March 1,
2016, see R. 302, which the Court again denied. See R. 304. Mr. Schneider then
sought permission to file a second interlocutory appeal on this issue on March 11,
2016, see R. 306, which the Court denied. See R. 311. Mr. Schneider also filed a
motion in limine to disqualify defense counsel on April 4, 2016, R. 317, which was
denied at the first final pretrial conference on April 21, 2016. R. 333.
It appears that Mr. Schneider’s focus on seeking to have defense counsel
disqualified caused him to miss the critical deposition of the state court judge who
held him in contempt. That deposition was noticed for March 4, 2016, see R. 330-1
at 18, and defense counsel also sent emails and letters to Mr. Schneider on several
occasions through February 2016 in an attempt to ensure that Mr. Schneider was
aware of the deposition date and that he would attend. See 330-1. The deposition
was necessary because the state court judge was going to be out of the country
during the trial. Mr. Schneider responded to several of the emails, but never
indicated whether he would attend the deposition, and instead continued to press
his theory that defense counsel were not properly appointed. See R. 330-1 at 29, 35-

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36, 44. It appears that Mr. Schneider should have been able to attend the deposition
because on the day of the deposition which was to take place at defense counsel’s
office in Joliet, Illinois (approximately seven miles from Mr. Schneider’s residence
in New Lenox, Illinois), he instead traveled more than 40 miles to the Dirksen
courthouse to file a “supplemental pleading” yet again seeking defense counsel’s
disqualification. See R. 305.
Mr. Schneider focused on this particular disqualification issue to such an
extent that he also failed to participate in preparation of the final pretrial
memorandum. Defense counsel represented on the record that during the time
period when Mr. Schneider was devoting significant time to preparing and filing
multiple motions attempting to have defense counsel disqualified, he was also
failing to respond to defense counsel’s communications regarding preparation of the
final pretrial memorandum. See R. 330-1. Mr. Schneider failed to submit a witness
list, exhibit list, proposed jury instructions, proposed voir dire questions, or any
comment or objection regarding defense counsel’s pretrial submissions. See R. 326.
On April 12, 2016, Mr. Schneider filed a motion for a new trial date because
he was evicted from his home on March 31, 2016. R. 324. Considering the age of the
case, the number of times the trial had already been postponed, the length of time
Mr. Schneider had already had to prepare for the April 25, 2016 trial date, and the
fact that Mr. Schneider had shown that he was able to prepare and file multiple
briefs relating to the disqualification issue in the time period surrounding his

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eviction, the Court denied Mr. Schneider’s motion for a new trial date at a hearing
on April 18, 2016. R. 329.
Mr. Schneider’s failure to participate in the preparation of the final pretrial
memorandum was the primary basis for Defendants’ motion to dismiss for failure to
prosecute. See R. 330. At a hearing on April 20, 2016, Mr. Schneider represented
that he had not participated in the preparation of the final pretrial order because he
had become “homeless.” But according to Mr. Schneider, he was not evicted until
March 31, and even after that date he continued to prepare and file documents with
the Court relating to the disqualification issue, and also ironically to bar the
introduction into evidence of the video recording of the deposition of the state court
judge. See R. 317; R. 319; R. 324. Mr. Schneider’s filing activity in this case belies
his claim that he could not participate in preparing the final pretrial memorandum
because of his personal housing circumstances. Instead, the record reveals that Mr.
Schneider chose to focus his time and energy on seeking defense counsel’s
disqualification rather than preparing for a trial on the merits of his claims.
Mr. Schneider participated in the final pretrial conference on April 21, 2016.1
Unsurprisingly, Mr. Schneider appeared largely unprepared for the trial scheduled
for four days later. At a subsequent hearing the next day on April 22, 2016, Mr.
Schneider also represented to the Court that he was living out of his car at that
time, and only had internet access at the public library. For these reasons, the

Because of Mr. Schneider’s residence in Will County and his apparent lack of
resources, the Court has frequently allowed Mr. Schneider to appear for conferences
on the phone. In fact, the entire final pretrial conference of April 21, 2016 was
conducted with Mr. Schneider on the phone.

1

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Court found that it would be inappropriate to use the Court’s resources (including
juror time) to conduct a trial that Mr. Schneider was clearly not at all prepared to
proceed with. Rather than dismiss the case at that time, which would have been
appropriate pursuant to Federal Rules of Civil Procedure 16(f)(1)(B) and
37(b)(2)(A)(v), the Court vacated the April 25 trial date, R. 334, and requested
Elizabeth Harrington, an experienced member of the trial bar, of the law firm of
Moran Lewis & Bockius LLP, to volunteer to represent Mr. Schneider. R. 336. Mr.
Schneider had filed a petition for the appointment of counsel before Judge Dow on
December 18, 2013, R. 222, which he later withdrew rather than submit a financial
affidavit that would be available to defense counsel. See R. 232; R. 233; R. 234. Mr.
Schneider agreed to allow Ms. Herrington to represent him.2
A new trial date was set for August 22, 2016. According to defense counsel,
Ms. Herrington and two of her colleagues at Morgan Lewis diligently prepared for
trial, including serving witness subpoenas and drafting motions in limine and other
pretrial materials. But on July 28, 2016, Mr. Schneider’s Morgan Lewis attorneys
filed a motion to withdraw. R. 345. In their motion, the Morgan Lewis attorneys
stated that they had been unable to convince Mr. Schneider to attend any meetings
to prepare for trial since May 6, 2016, and had not received any communication at
all from Mr. Schneider since July 10, 2016. Id. at 2. Additionally, on July 23, 2016,

Although recruitment in this case was done without requiring the public filing of a
financial affidavit, the Court was satisfied based on the record that Mr. Schneider
was in fact indigent. Further, the Court believed that the recruitment of counsel
was necessary in order to assure that the trial would be conducted in an efficient
manner for the jury.

2

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Mr. Schneider filed a mandamus petition with the Illinois Supreme Court seeking
to pursue his theory that defense counsel were improperly appointed by the Will
County State’s Attorney. See R. 345-1. At a hearing on August 2, 2016, Mr.
Schneider told the Court that he no longer wanted to be represented by the Morgan
Lewis attorneys. R. 353 at 6. On that basis, and on the basis of the representations
made in the Morgan Lewis motion, the Court granted their motion to withdraw on
August 2, 2016. R. 349. At the August 2 hearing, the Morgan Lewis attorneys
represented that they would supply Mr. Schneider with the motions in limine and
pretrial memoranda they had prepared. R. 353 at 10. The Court retained the
August 18, 2016 pretrial conference date and the August 22, 2016 trial date.
Mr. Schneider never submitted any pretrial materials. Instead, Mr.
Schneider filed a motion to postpone the trial until the Illinois Supreme Court
addressed his mandamus petition regarding the propriety of defense counsel’s
appointment. R. 356. The Court denied that motion at a status hearing on August
15, 2016. R. 357. At that hearing, the Court also warned Mr. Schneider that if he
did not appear at the pretrial conference on August 18, 2016, the Court would
dismiss his case for want of prosecution.
Mr. Schneider attended the pretrial conference in person on August 18, 2016.
He again asked to continue the trial date until the Illinois Supreme Court ruled on
his mandamus petition, which the Court denied. But several minutes into the
conference, Mr. Schneider became upset and tendered to the Court and defense
counsel a motion to recuse the undersigned judge, R. 359, which was lengthy and

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had obviously been prepared well in advance of the hearing.3 In fact, the copies Mr.
Schneider tendered to the Court and defense counsel were time stamped prior to the
start of the hearing, and contained passages that clearly had been prepared in
anticipation of filing the motion in April before the Court continued the trial date to
August 22, 2016. See, e.g., R. 359 at 25 (“Judge Durkin insisted on going to [trial] on
April 25, 2016 . . . .”). Mr. Schneider then asked to be excused. The Court denied
that request and warned Mr. Schneider that if he left the courtroom the Court
would likely dismiss his case for want to prosecution. Mr. Schneider then abruptly
left the courtroom.
For the foregoing reasons, the Court finds that Mr. Schneider “is
substantially unprepared to participate” and has “not participated in good faith” in
the pretrial proceedings as is required by Federal Rule of Civil Procedure
16(f)(1)(B). Under such circumstances, the Court is permitted to dismiss this action
pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(v). In terms of scheduling
and deadlines, the undersigned judge has given Mr. Schneider every benefit of the
doubt for the two years he has been assigned to this case. The previous judges who
presided over the case showed similar patience. Despite that leeway, Mr. Schneider
has consistently flouted the Court’s scheduling orders and focused on what he
believes to be important—his desire to have defense counsel disqualified—to the
detriment of the merits of his case. At some point enough is enough, and

The Court denied the recusal motion on August 23, 2016. R. 362. Notably, Mr.
Schneider also filed a motion to recuse Judge Gettleman after Judge Gettleman
ruled against him on summary judgment. See R. 175. That motion was denied. R.
178. 
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unfortunately we reached that point when Mr. Schneider walked out of the
courtroom on August 18, 2016. Even if the procedural facts of this case were
entirely different and Mr. Schneider had promptly complied with all scheduling
orders, dismissal for failure to prosecute would still be required once he walked out
of the courtroom with the apparent intent not to continue with his case. Leaving the
courtroom in this manner, without providing any excuse, is the quintessential
demonstration of a failure to prosecute. The Court was prepared to conduct the final
pretrial conference at that time and select a jury several days later. Mr. Schneider’s
walking out on the Court made that impossible.
The Court regrets it has come to this. As the Seventh Circuit made clear, Mr.
Schneider was held in jail too long in 2007. See Schneider, 528 Fed. App’x at 595 (“A
jury reasonably could conclude that O’Leary’s chosen course of action—continuing
Schneider’s imprisonment based on a layperson’s dubious evaluation of Schneider’s
legal concern—was so deficient as to constitute deliberate indifference, and we
remand for trial on that question.”). There was a triable issue as to whether Warden
O’Leary was deliberately indifferent to that fact. A jury trial would likely have
taken only a few days, and at most a week. But apparently Mr. Schneider does not
want to go to trial, and instead is fixated on the issue of disqualification of defense
counsel, to the exclusion of trial preparation for this straightforward case.4

Although pro se, Mr. Schneider is not an inexperienced litigator. In addition to the
eight years he has spent on this case, he prosecuted another case in this district
from April 2001 through November 2005 (01 C 2779), has filed four notices of
appeal with the Seventh Circuit regarding issues in this case (09-3021, 09-3340, 122122, 14-3605), and has filed various proceedings in state court.
4

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Mr. Schneider’s actions have disrupted the Court’s calendar on a number of
occasions because the time set aside for each trial date in this case was unavailable
to other parties who sincerely wanted to go to trial. As a result, other cases were
delayed, and courtroom time reserved for Mr. Schneider’s trial often went unused,
because other parties were not able to take advantage of an opening on such short
notice. The disruption to Defendants, defense counsel, defense witnesses, and other
cases on the Court’s docket is simply unacceptable. Just as a plaintiff has a right to
have his case heard, so too do defendants have a right to have serious allegations of
misconduct resolved expeditiously and not left hanging over them for years. The
Court has shown enormous patience to Mr. Schneider. That patience is now
exhausted. There are no other acceptable and reasonable sanctions available short
of dismissal.
Defendants’ motion to dismiss this case for want of prosecution, R. 330, is
granted, and this case is dismissed with prejudice. Defendants’ remaining pending
motions in limine, R. 351; R. 352, are denied as moot.
ENTERED:

______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: August 25, 2016

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