McCollum, Clyde v. Hearron, Bryan et al

Filing 57

ORDER granting in part and denying in part 53 Motion to Dismiss for Lack of Prosecution. Plaintiff's complaint is dismissed with prejudice for his failure to prosecute it. The clerk of court is directed to close this case. Signed by District Judge James D. Peterson on 8/22/2017. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

CLYDE R. MCCOLLUM, JR.,
Plaintiff,
v.

OPINION & ORDER
14-cv-799-jdp

DETECTIVE HANSEN,
Defendant.

I granted pro se plaintiff Clyde R. McCollum, Jr., leave to proceed against defendant
Detective Hansen on a Fourth and Fourteenth Amendment claim concerning an illegal search
of McCollum’s computer. Dkt. 43. Six months later, Hansen filed a motion to dismiss
McCollum’s complaint for failure to prosecute. Dkt. 53. Hansen explains that after receiving
incomplete responses to her discovery requests in March 2017, she sent several letters to
McCollum requesting more information, but never received a response. The court set a July 6,
2017 deadline for McCollum to respond to Hansen’s motion. That deadline came and went
with no response.
Federal Rule of Civil Procedure 41(b) authorizes the court to dismiss an action when
the plaintiff fails to prosecute it. The court will do so here. Hansen warned McCollum that she
would move to dismiss the case if he didn’t respond. See Dkt. 55-5. McCollum didn’t respond.
Hansen mailed McCollum a copy of her motion to dismiss the case; McCollum still didn’t
respond. Hansen mailed McCollum a copy of her reply in support of her motion to dismiss the
case; McCollum still didn’t respond. McCollum has clearly failed to prosecute his case, so
dismissal is in order.

Hansen asks the court to dismiss the action with prejudice. Dismissals under Rule 41(b)
are, by default, decisions on the merits, which is to say, with prejudice. That result is
appropriate here: the court has had to screen McCollum’s complaint, and Hansen has engaged
counsel, answered the complaint, and attempted to conduct discovery. The court will not give
McCollum the opportunity to start again from scratch. Hansen also asks the court to award
her fees and costs associated with bringing the motion. But Hansen makes no argument in
support of her request, and even if she did provide support, I would most likely decline to order
such a harsh sanction against a pro se litigant, at least absent a substantial showing of bad faith.

ORDER
IT IS ORDERED that:
1. Defendant Detective Hansen’s motion to dismiss for failure to prosecute, Dkt. 53,
is GRANTED in part and DENIED in part, consistent with the opinion above.
2. Plaintiff Clyde R. McCollum, Jr.’s complaint is DISMISSED with prejudice for his
failure to prosecute it.
3. The clerk of court is directed to close this case.
Entered August 22, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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