Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. IP 78-13-C and IP 80-810-C -- William E. Steckler, Judge.
Before Cummings, Chief Judge, Coffey, Circuit Judge, and Moran, District Judge.*fn*
COFFEY, Circuit Judge. This case is a consolidation of two actions alleging that the defendant Greyhound Lines, Inc. discriminated against the plaintiff on the basis of race in terminating his employment on three separate occasions. The district court dismissed the plaintiff's lawsuit pursuant to Federal Rule of Civil Procedure 41(b)*fn1 for failure to prosecute the actions and pursuant to Federal Rule of Civil Procedure 37(b)(2)(C)*fn2 for failure to cooperate in discovery. The court further denied the plaintiff's motion for relief from the dismissal order pursuant to Federal Rule of Civil Procedure 60(b).*fn3 We affirm.
The plaintiff, as a black male, was employed by Greyhound Lines as a bus driver in 1966. In August of 1973, Stevens was discharged from his employment with Greyhound for allegedly hitting a fellow Greyhound employee, Valerie Billups, but after an arbitration hearing, was reinstated in January of 1974. Greyhound again terminated the plaintiff's employment seven months later in July of 1974, this time for allegedly falsifying his time records and for becoming "involved in an altercation with a [Greyhound] terminal employee which resulted in [Stevens] receiving a gun shot wound...." Stevens again went to arbitration and was ordered reinstated to his employment. Four years later, while in Greyhound's employ, Stevens filed his first federal district court suit alleging that Greyhound had discriminated against him on the basis of race in terminating his employment in 1973 and 1974.*fn4 The district court set a trial date of August 11, 1980.
Sometime in 1979,*fn5 the plaintiff received a third and final discharge for allegedly harassing a fellow employee at the Greyhound terminal. On August 7, 1980, four days before the lawsuit arising from the 1973 and 1974 employment discharge was scheduled for trial, Stevens filed a second lawsuit in the district court, alleging that he had been discharged a third time because of his race and also because he had previously sued Greyhound for racial discrimination. The court granted Stevens' motion to consolidate both racial discrimination actions, and set a trial date of September 21, 1981 for the consolidated actions.
On July 14, 1981, approximately two months before the scheduled trial date, the plaintiff filed a formal complaint against his attorney with the Indiana Supreme Court Disciplinary Commission, alleging that his attorney "didn't care about handling [the] case" and that his attorney had made disparaging racial remarks concerning him (Stevens). After the filing of this complaint, the plaintiff's attorney moved the district court for permission to withdraw from representing the plaintiff. Stevens opposed the withdrawal motion, even though he had previously expressed his dissatisfaction with his attorney to the Disciplinary Commission. In light of the contested withdrawal motion, the court once again continued the September 21, 1981 trial date, and reassigned the case for trial to begin on December 14, 1981.
At an October 30, 1981 pre-trial conference, the trial court granted Stevens' attorney's leave to withdraw and instructed the plaintiff to secure new counsel.*fn6 Late in the week preceding the December 14, 1981 trial date, the court learned that the plaintiff in fact had failed to obtain new counsel as of this date and would be without counsel for trial on December 14. Nevertheless, the court held an on-the-record conference on December 14, 1981.
At the conference the plaintiff stated that while he had made efforts to obtain new counsel through the NAACP, he informed the court that he had not yet formally retained a lawyer. The primary reasons the plaintiff gave for his lack of counsel were his inability to obtain his records from his former counsel and lack of funds sufficient to retain new counsel. In an effort to remedy the situation, Judge Steckler had his clerk arrange with the lawyer for the return of Stevens' records. The attorney also agreed to waive any outstanding fees for representing Stevens. The court advised Stevens that he could obtain his records from the attorney, after which the following discussion took place:
"THE COURT: Well, all I can say, now we will give a new trial date, and I will tell you. Mr. Stevens, I will have no alternative except to dismiss your lawsuit if we don't go to trial on he next trial date. Now, when can you get a lawyer? I'm going to let you tell me. I'm trying to accommodate you.
"MR. STEVENS: I think it will take me -- well, I can get a lawyer, but the fact by the time he reads the files, and I think it will probably take me a month to go back to trial, by the time I pay a lawyer, borrow money to pay a lawyer and so forth.
"THE COURT: Do you have a date? I want to give him plenty of time. I want the case prepared; I want to try it. If he wants another year, we will give him another year.
"MR. STEVENS: I want to get it off with myself personally, because it's a lot of mental strain on me and my family. If you have never been fired or nothing, you don't know what you go through. It's a mental strain with me myself personally, because I know I'm right.
"THE COURT: That is what we want to try to find out, whether you are right or whether you are wrong.
"MR. STEVENS: That's what I want.
"THE COURT: I want to give him at least 60 days.
"MR. STEVENS: I appreciate that, sir.
"THE COURT: 60 or 90 days.
"MR. STEVENS: I'd like to know the exact date.
"THE COURT: We might even give him ...