Harrison v. Jaques et al

Filing 70

OPINION AND ORDER denying 61 Verified MOTION to Dismiss filed by David Borgetti, Tony Morris, Greg Mance, Griffith Police Department, Town of Griffith, Jason Jacques. The Court SETS this matter for an in-person status conference for inquiry on attorney representation for September 6, 2016, at 9:30 a.m. (C.S.T.). Plaintiff Gary Harrison is ORDERED to appear in person at the conference. Signed by Magistrate Judge Paul R Cherry on 8/16/06. cc:cert & reg mail w/docket sheet(kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
GARY JOE HARRISON,
Plaintiff,
v.
TOWN OF GRIFFITH, GRIFFITH
POLICE DEPARTMENT, JASON
JAQUES, TONY MORRIS, GREG
MANCE, and DAVID BORGETTI,
Defendants.

)
)
)
)
)
)
)
)
)
)

CAUSE NO.: 2:15-CV-37-PRC

OPINION AND ORDER
This matter is before the Court on Defendants’ Verified Motion to Dismiss [DE 61], filed
by Defendants Town of Griffith, Griffith Police Department, Jason Jaques, Tony Morris, Greg
Mance, and David Borgetti on June 24, 2016.
Defendants ask the Court to dismiss this case pursuant to Federal Rule of Civil Procedure
41(b) for failure to prosecute. Rule 41(b) provides that, “[i]f the plaintiff fails to prosecute or to
comply with these rules or a court order, a defendant may move to dismiss the action or any claim
against it.” Fed. R. Civ. P. 41(b). Under Rule 41(b), a court should only dismiss a case when “there
is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven
unavailing.” Brown v. Columbia Sussex Corp., 664 F.3d 182, 190 (7th Cir. 2011) (citing Maynard
v. Nygren, 332 F.3d 462, 467 (7th Cir. 2000)); see also Salata v. Weyerhaeuser Co., 757 F.3d 695,
699 (7th Cir. 2014). In most cases, the district court should warn the plaintiff that such a sanction
may be imposed. See Williams v. Chi. Bd. of Educ., 155 F.3d 853, 857 (7 th Cir. 1998); see also Ball
v. City of Chi., 2 F.3d 752, 759-60 (7th Cir. 1993) (indicating that “[t]here should be an explicit
warning in every case”). In considering such a dismissal, a district court should consider numerous
factors, including the frequency and magnitude of the plaintiff’s conduct, the prejudice to the

defendant, the disruption to the orderly administration of the court’s calendar, and the merits of the
underlying litigation. See Williams, 155 F.3d at 857; Bolt v. Loy , 227 F.3d 854, 856 (7th Cir. 2000).
As set forth more fully in the Court’s Opinions and Orders at docket entries 64 and 67, the
Court extended the time for Plaintiff to respond to the Motion to Dismiss due to concerns that the
Court was not given the correct address for Plaintiff at the time his former attorney withdrew his
appearance. On August 15, 2016, Plaintiff filed a notice with the Court providing his current
address, representing that his former attorney did not provide the Court with the correct mailing
address and that he has not received any of the Court’s prior mailings, and providing the Court with
his current mailing address and phone number. The Court finds that Plaintiff has not displayed
contumacious conduct and dismissal under Rule 41 is not warranted.
Accordingly, the Court hereby DENIES Defendants’ Verified Motion to Dismiss [DE 61].
The Court SETS this matter for an in-person status conference for inquiry on attorney
representation for September 6, 2016, at 9:30 a.m. (C.S.T.). Plaintiff Gary Harrison is ORDERED
to appear in person at the conference. Counsel for the other parties may participate telephonically
with notice to Courtroom Deputy Sue Brown-Nickerson at [e-mail] at least
48 hours in advance of the conference.
The Court DIRECTS the Clerk of Court to send an updated copy of the docket as well as
a copy of this Order to Plaintiff Gary Joe Harrison by first class and certified mail, return receipt
requested.
SO ORDERED this 16th day of August, 2016.
/s Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:

Pro se Plaintiff Gary Joe Harrison
2