Jordan v. Jones et al

Filing 27

ORDER granting 26 Motion to Dismiss for Lack of Prosecution. Signed by Magistrate Judge Stephen C. Williams on 12/28/12. (amv)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROCK JORDAN,
Plaintiff,
vs.
DR. CHHABRA,
Defendant.

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Case No. 11–cv–0919–SCW

ORDER
WILLIAMS, Magistrate Judge:
This § 1983 lawsuit stems from pro se Plaintiff Rock Jordan’s allegations that Defendant
Jogendra Chhabra, M.D., violated his Eighth Amendment rights via deliberate indifference to
Jordan’s serious medical needs. The case comes before the undersigned judge on Defendant
Chhabra’s motion to dismiss for failure to prosecute the case. The motion is GRANTED.
BACKGROUND
In October 2011, Jordan brought the instant suit against three state employees who worked
at the Franklin County Jail. Jordan, apparently free from custody, informed the Court of his new
Gary, Indiana, address in February 2012. After District Judge Reagan’s § 1915A threshold review (in
August 2012), only one defendant—Dr. Chhabra—remained.

Chhabra filed his Answer on

November 26, 2012, and consented to the undersigned magistrate judge’s jurisdiction on December
21, 2012.
On December 20, 2012, the undersigned held a telephonic status conference.

The

teleconference had been noticed, call-in-instructions included, in late November 2012, with an
explicit warning to Mr. Jordan: “Mr. Jordan should take note: should he fail to appear for the

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December 20 teleconference, his CASE MAY BE DISMISSED [pursuant to] Federal Rules of Civil
Procedure 16(f) and 41(b).” (Doc. 20, 2). The plaintiff failed to appear for the telephonic hearing.
At the hearing, Defendant informed the Court that a deposition had been set for 10:00 a.m.
on December 21, 2012, and that Plaintiff had been sent notice of that deposition (at the Gary
address) on December 7. At the deposition, defense counsel and court reporter waited 55 minutes
for the plaintiff, who failed to attend. Based on the plaintiff’s failure to appear at the deposition, and
his failure to appear at the December 20 teleconference, Defendant made an oral motion to dismiss
the case.
Mr. Jordan’s last filing with this Court occurred in February 2012, when he notified the
Court of his new address. Every Court order subsequent to that notice has been sent to Jordan’s
Gary, Indiana, address. The Court has not received any indication that Jordan’s address is invalid:
no mail has been returned (as undeliverable or for any other reason) to the Court.
ANALYSIS
Federal Rule of Civil Procedure 16(f) permits sua sponte sanctions (including those
authorized by Federal Rule 37(b)(2)(A)(ii)–(vii)) against a party who fails to appear at a pre-trial
conference. FED. R. CIV. P. 16(f)(1)(A). Under Rule 37(d), those same sanctions (plus Rule
37(b)(2)(A)(i)’s sanction of establishing designated facts for purposes of the action) are available if a
properly noticed party fails to appear at his own deposition. FED. R. CIV. P. 37(d)(1)(A)(i).
In turn, Rule 37(b) authorizes dismissal, which the Seventh Circuit has called a “feeble
sanction” if it is without prejudice. Lucien v. Breweur, 9 F.3d 26, 28 (7th Cir. 1993); FED. R.
CIV. P. 37(b)(2)(A)(v). Dismissal can also be effectuated via Federal Rule 41(b), which states the
general principle that failure to prosecute a case should be punished by dismissal with prejudice.

Lucien, 9 F.3d at 29. Accord James v. McDonald’s Corp., 417 F.3d 672, 681 (7th Cir. 2005)

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(under Rule 41(b), a “district court has the authority . . . to [dismiss a case] for lack of
prosecution.”).
Jordan’s failure to appear at his deposition puts the case in the crosshairs of Rule
37(d)(1)(A)(i), and his failure to appear at the December 20 teleconference subjects him to sanctions
under Rule 16(f). More broadly, Jordan’s lack of interest in the case—he has apparently not hired an
attorney, and has been silent since February 2012—give this Court discretion to dismiss his case for
his failure to prosecute it. FED. R. CIV. P. 41(b). Even though he knew the consequence of his
inaction—the Court expressly warned him that failing to appear for an easily-accessed toll-free
telephonic hearing would subject him to the sanction of dismissal—Mr. Jordan did not call in for the
December 20 teleconference. See Ball v. City of Chi., 2 F.3d 752, 760 (7th Cir. 1993) (“there
must be an explicit warning before the case is dismissed” for failure to prosecute). The
Court finds that Mr. Jordan’s failure to prosecute the case generally, and in particular his failure to
appear at either his deposition or the December 20 teleconference, warrant dismissal. See Lucien,
66 F.3d at 29 (“The criteria for sanctions under Rules 16(f), 37(b), and 41(b) are the same.”).
This case is therefore DISMISSED WITH PREJUDICE.
DISPOSITION
For the foregoing reasons, Defendant’s oral motion to dismiss is GRANTED. The case is
DISMISSED WITH PREJUDICE for Mr. Jordan’s failure to diligently prosecute his case. All
settings are hereby cancelled. Judgment shall be entered, and the case shall be closed.
IT IS SO ORDERED.
/s/ Stephen C. Williams
STEPHEN C. WILLIAMS
United States Magistrate Judge

DATED: 12/28/2012

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