United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JEFFREY COLE, Magistrate Judge.
Anthony Moore is an African-American member of Pipefitters Association Local Union 597 ("Local 597"). While his battle with his Union goes back a decade when he first filed charges with the EEOC, his Complaint in this case charges Local 597 with race discrimination, retaliation, and failure to represent him. Mr. Moore claims Local 597 failed to recall and/or refer him for jobs, first through its hiring hall and later through its referral hall, because of his race and/or because he has filed claims against Local 597, and has spoken out against it. According to Mr. Moore, Local 597 referred non-African-American members who were lower on Local 597's out-of-work list than he. Mr. Moore also blames Local 597 for the fact that no signatory contractor has hired him directly. He brings his claims under 42 U.S.C. §1981 and Title VII, 42 U.S.C. §§2000e-2; 2000e(3).
On February 14th, defendant filed its motion for summary judgment. [Dkt. ##171-173]. Defendant also filed its motion to bar plaintiff's expert. [Dkt. ##168-170]. That motion was noticed for February 20, 2014. [Dkt. #170]. Mr. Moore failed to appear or call on February 20th. Although his response to the motion for summary judgment was to be filed by March 18th [Dkt. #163], because the plaintiff was pro se I sua sponte granted him an extension to April 24, 2014 to respond to the summary judgment motion, as well as the motion to bar. [Dkt. #175].
On March 17, 2014, Mr. Moore filed a motion "for temporary withdrawal due to medical issues." [Dkt. #176]. The motion, which sought a six month delay, claimed that Mr. Moore had been prescribed certain drugs for his knee having "go[ne] out" whose "psychotropic side effects" prevented him from being able to respond to the motion. With the motion, Plaintiff attached nine pages of medical records. [Dkt. No. #176]. I concluded that that motion did not warrant the relief requested. See Order of 3/28/14. [Dkt. #177]. Nonetheless, as will be seen below, Mr. Moore effectively received multiple, informal extensions to file his brief.
Yet, as of the date of this Memorandum Opinion, Mr. Moore still has not filed any response even though he has, in effect, had four months to respond. Additionally, despite repeated requests, he has refused to give a date when one might expect his response. In fact, on May 29th, all Mr. Moore could say is that his doctor had told him that he could do no gardening. But he refused to give any estimate no matter how far off in the future of when he would respond to the motion for summary judgment. [Dkt. #205].
Not surprisingly, the Union has now moved for a ruling on the motion for summary judgment and its motion to strike the plaintiff's expert's report. [Dkt. #206].
The indisputable facts surrounding this case compel the conclusion that Mr. Moore is attempting to absolve himself of his obligation to pursue his own case and to abide by reasonable deadlines. He is seeking to forestall judgment in the case and leave the Union dangling while he pull the strings of all the participants. Mr. Moore's pro se status does not entitle him to the kind of singular and special treatment that he unfairly seeks to accord himself. See McNeil v. United States, 508 U.S. 106, 113 (1993); Ammons-Lewis v. Metropolitan Water Reclamation Dist. of Greater Chicago, 543 Fed.Appx. 591, 594-595 (7th Cir.2013); 3SM Realty & Development, Inc. v. FDIC, 393 Fed.Appx. 381, 383 (7th 2010); In re Gunartt, 355 Fed.Appx. 66, 68 (7th Cir. 2009); McKinney v. Guthrie, 309 Fed.Appx. 586, 590 (3rd Cir. 2009); Mathis v. New York Life Ins. Co., 133 F.3d 546, 548 (7th Cir.1998).
Because of Mr. Moore's conduct, it is necessary to review in some detail the ostensible reasons for Mr. Moore's continuing failure to respond to the motion for summary judgment.
Overall, Mr. Moore has been a rather reluctant participant in his own case, both before and after firing his second set of attorneys in October 2013, and proceeding pro se. [Dkt. # 161-163]. Mr. Moore began his case, pro se, and by August 11, 2011 he had failed to appear for status hearings three times without excuse. Judge Holderman, then presiding over this matter, ordered him to appear at the next hearing or his case would be dismissed for want of prosecution. [Dkt. #39]. Mr. Moore retained counsel and was represented at that hearing. [Dkt. ##40-43]. In December 2011, the case was referred here for discovery supervision and a settlement conference. [Dkt. ##45-46].
In February 2012, Mr. Moore's counsel moved to withdraw. The motion was denied based upon representations made in open court. [Dkt. #54]. But by May 2012, notwithstanding whatever representations had been made, Mr. Moore's counsel again moved to withdraw. That motion was granted. [Dkt. #76, Dkt. #83].
By May 2012, Mr. Moore was again ignoring dates for hearings before Judge Holderman and this court, missing hearings on May 31st, June 12th, and June 26, 2012, without calling or providing any excuse. [Dkt. ##84, 91, 97]. As before, he was warned that his consistent failure to participate in his case could result in the dismissal of his suit. [Dkt. #97].
On September 13, 2012, I held a settlement conference, and the parties reported the case was not settleable. [Dkt. #109]. A month later, new counsel for Mr. Moore filed their appearances. [Dkt. ##113-118]. In May 2013, there were proceedings to determine whether a second settlement conference would be productive. In light of the plaintiff's having doubled his demand from the time of the earlier unsuccessful settlement conference, it was agreed that another conference would be pointless. [Dkt. ##144-145].
In late July 2013, the parties consented to jurisdiction in this court pursuant to 28 U.S.C. §636(c). [Dkt. ## 156-158]. Mr. Moore was represented by new counsel at this time.
In early October 2013, less than a year after they filed the Fourth Amended Complaint [Dkt. #122], the plaintiff's five new lawyers filed their motion to withdraw, having been discharged by Mr. Moore. [Dkt. ##159-162]. That motion was granted. [Dkt #162].
In November, Mr. Moore informed the court that he would be proceeding pro se [Dkt. #163] dnd he began to again miss court hearings. For example, he sent an email on January 14, 2014 to my courtroom deputy saying he would not be in attendance at the hearing on January 16th, because he might be needing some sort of surgery. [Dkt. #164]. The date was changed to the 17th to accommodate Mr. Moore.
On January 17th, Mr. Moore called my courtroom deputy saying he wouldn't be appearing because he was taking some unspecified medicine and that he thought he was going to require surgery at the VA but would give no specifics. When counsel for defendant appeared, we tried to reach Mr. Moore. Even though it was 8:40 a.m., there was no answer at his house phone. The hearing was continued to January 21st and Mr. Moore was ordered to attend. [Dkt. #165].
On January 21st Mr. Moore again failed to appear or call as he had been ordered to do. Consequently, we were forced to contact him by phone. Mr. Moore claimed he was unable to come to court and that he was taking psychotropic medication in connection with his having thrown out his back shoveling snow. He said the drugs caused his speech to be slurred, but as I observed in at least two minute orders, several months apart, his speech was lucid, clear, forceful, unimpaired and did not differ in the slightest from his speech that I had observed in the several times he appeared before me and during a settlement conference in 2012. [Dkt. ## 109, 166, 192].
I explained that Mr. Moore's unsupported representations could not suffice to postpone the progress of the case and that he needed to substantiate those representations. In this conversation, Mr. Moore said he would not appear at a continued status the next day, and I said that we would contact him by phone. He was ordered to submit medical support for his position that he was unable to come to court or to file a response to the defendant's motion for summary judgment that was currently due on March 18th - the defendant's motion having been filed on February 14, 2014. [Dkt. # 163]. The case was continued to January 22nd. [Dkt. #166].
On January 22nd, we contacted Mr. Moore by phone, and he represented that he would abide by the briefing schedule which had been in place for some time. Yet, he refused to appear at yet another rescheduled hearing the next day. He was ordered to produce medical evidence to support his claims that he could neither come to court nor call in to participate in his lawsuit. Both the court and Local 597 mailed Mr. Moore copies of Local Rule 56.1, governing summary judgment motions and responses, and an explanation of the consequences of failure to comply with that rule. [Dkt. #167].
Interestingly, on February 4, 2014, Mr. Moore was seen walking the picket line at the Local 597 Union hall on Ogden Avenue in Chicago. He did not require the use of a cane or other device. [Dkt. ## 183, 187].
At the next status hearing on February 20th, Mr. Moore didn't show up and didn't bother to call in to participate or explain his absence. [Dkt. #175]. The minute order of February 20th cautioned Mr. Moore that if he continued to shirk his obligations, his case could be dismissed with prejudice for want of prosecution and/or failure to comply with court orders. [Dkt. #175].
On March 17th, Mr. Moore filed a typed motion to temporarily "withdraw from his case" for six months due to claimed medical issues with his back and knee. [Dkt. #176]. He claimed he would be having two surgeries - apparently on his back and knee. Later, on February 25th, he canceled a scheduled hernia surgery at the VA, claiming he wanted to get a second opinion. His motion included what purported to be a note from his doctor, who said Mr. Moore should do a minimum of walking and no prolonged standing. The note had no other restrictions. X-rays showed only mild degenerative changes in Mr. Moore's left knee. [Dkt. #176, p. 6].
Attached to the motion were photocopies of a patient medication information sheet provided by the VA on January 21, 2014 to Mr. Moore. There were prescriptions for Cyclobenzaprine, Diazepam, and Hydrocodone. Cyclobenzaprine is a muscle relaxant to be taken at bedtime. Neither the Diazepam nor the Hydrocodone prescriptions were refillable and there was only enough for five days. [Dkt. #176].
Mr. Moore was repeatedly unreachable by phone, which he later explained was due to the fact that he turns off his phone when he is typing. [Dkt. #178] - thus showing Mr. Moore's capacity to at least type the required response to the motion for summary judgment. In fact, Mr. Moore had a computer at his home. See infra at 19.
On March 28th I scheduled a hearing for April 1st to determine how long, if at all, this now four-year-old case should be delayed. Mr. Moore was ordered to appear. [Dkt. #177]. Mr. Moore refused to attend the hearing because he said he was in the process of contacting his doctor to make an appointment. for April 1st. [Dkt. #178]. I continued the hearing on his motion to April 3rd. [Dkt. # 178]. Mr. Moore claimed he was unable to walk and was on crutches. He said he would contact the court by email; he was advised that this was inappropriate - he could not engage in ex parte communications and had to file a motion. [Dkt. #178]. True to his word, but oblivious to the court's directions, Mr. Moore sent an email on that same day. He claimed - contrary to the records he submitted - that his doctor ordered him not to walk or stand, and that he would not be attending the hearing because he had scheduled an MRI for that day. [Dkt. #182].
On April 1st, I ordered the defendant to file a written response to Mr. Moore's motion to continue the case for six months. [Dkt. # 181]. They did so on April 4, pointing out that the medications prescribed in January for his back were prescribed without refills or were to be taken only at bedtime (other than Ibuprofen) and that he was discharged from the emergency room on December 4, 2013 with an instruction of "observe" and a follow up as indicated as "See Gen Surg 1m for eval." [Dkt. #183]. Mr. Moore would later concede that his back situation did not prevent him from responding to the motion for summary judgment. [Dkt. #199].
Mr. Moore appeared by phone at the rescheduled hearing on April 7th. He said he would be seeing an orthopaedic surgeon and would likely have surgery. I told him that the records he had submitted so far did not appear to support his claim that it was impossible for him to respond to Local 597's motion for summary judgment. He was given another extension for his response to April 24th. [Dkt. ## 185-186]. Mr. Moore now claimed contrary to earlier assertions he was not seeing doctors at the VA. [Dkt. #185]. Mr. Moore was again advised of the consequences of failing to prosecute his case. Id.
On April 7th the Union filed a supplemental response to the plaintiff's motion to withdraw due to medical issues. [Dkt. # 187]. The Union retained the services of Dr. Anthony N. Harris, a board-certified Occupational Medicine physician to review the records submitted by Mr. Moore. Dr. Harris concluded that Mr. Moore was under no medical restrictions that prevented him from performing a sedentary level of work, i.e. reading, writing, typing, sitting, or speaking on the telephone. [Dkt. #187, Ex 3]. On April 9th, Mr. Moore was given 14 days to respond to this filing. [Dkt. #188].
Both before and after April 9th, Mr. Moore sent several emails to the court claiming to have attached medical records, but none were attached. [Dkt. # # 186, 193]. When he was told the next hearing date was set for April 21st, he said he could not call in that day due to a doctor's appointment. He refused to select another day where he could call in, vaguely claiming he had several doctors' appointments. Finally, he agreed to appear by phone on the originally scheduled date, April 21st. [Dkt. # 192]. The only additional medical evidence he ended up submitting showed that he might be scheduled for arthroscopic knee surgery and subsequent rehabilitation at some unknown time in the future.
On April 14th, Mr. Moore was again advised that his motion to stay had not been granted and that his response to the motion for summary judgment was due on April 24th. Mr. Moore again claimed that he was on psychotropic drugs and in desperate need of immediate surgery and not able to participate at all in the case. As in every other hearing with Mr. Moore, he was lucid, clear-speaking, and able to forcefully present his case. [Dkt. #192].
He was given another extension to file his response, to May 5th. [Dkt. #193]. On April 21st, in a conference call with counsel for defendant and the court, Mr. Moore conceded that whatever his back issues, they had nothing to do with his inability to pursue his case. [Dkt. # 199].
On April 28th, Dr. Harris submitted a detailed, supplemental declaration in which he reconfirmed his opinions in his declaration of April 4, 2014 and expanded on those opinions based upon his review of additional medical records. [Dkt. ## 187, 200]. In essence, he concluded that there was no medical support for Mr. Moore's claims that he was unable to pursue the case and that there were no medical restrictions that would prevent him from proceeding in the case. Finally, Dr. Harris's examination of the unredacted prescription records that Mr. Moore had provided to the court led him to conclude that Mr. Moore had had only a five-day supply of medication "that could impair or alter his sensorium during that period of time in which the medication was taken and that assuming that the January prescriptions were taken as indicated, there is no documentation of a current prescription for any medication which may impair Mr. Moore [sic] cognitive level of functioning." [Dkt. #200, ¶16].
The May 5th deadline for filing a response to the motion for summary judgment came and went with no response from Mr. Moore. On May 16th, a status conference was held. Mr. Moore had not filed his response to the motion for summary judgment which was then due on May 5th. Defense counsel represented that she had spoken to Mr. Moore who told her that he did not have the surgery he represented he was required to have on May 6th. [Dkt. #202].
On May 28th, Local 597 filed a Second Supplemental Declaration of Dr. Harris. [Dkt. #204]. This was, in actuality, Dr. Harris's third opinion in the case regarding Mr. Moore's physical impairments. Attached to Dr. Harris's submission were the medical records produced by the Hines VA Hospital. His review of the records led him to confirm his earlier opinions that there was no objective evidence to support physical limitations or impairments that would have adversely impacted Mr. Moore ability to read, write, type, speak, or perform other similar skills. Id. at ¶7.
He evaluated the prescriptions given to Mr. Moore and concluded that provided the listed medications were taken as prescribed, there is insufficient evidence in the documentation provided to support a conclusion that Mr. Moore had a cognitive impairment regarding his ability to read, write, type and speak. Id. at ¶ 8. Dr. Harris concluded that Mr. Moore does not have an impairment in his ability to use his hands or arms as would be required for typing or writing. Id. at 9. Mr. Moore was given 14 days to respond to the medical filings. [Dkt. #203].
On May 29th, Mr. Moore appeared by phone and reported that he had arthroscopic surgery on his knee on May 20th. [Dkt. #205]. Mr. Moore was again given leave to file a response to any pending filings by defendant regarding his medical situation without regard to whether the time to file such a response had passed. [Dkt. #205].
Mr. Moore's response to Dr. Harris's prior declarations was filed on June 11, 2014, which corresponded with a June 11th hearing at which Mr. Moore personally appeared with a cane. [Dkt. #208]. Mr. Moore does not dispute Dr. Davis's opinions. Indeed, he has said "I have no response to Dr. Davis at all regarding my health." [Dkt. #210]. All he has said is that he is "not well and cannot bear weight on [his] knee yet." He has a prescription for hydrocodone and is receiving physical therapy following his knee operation on May 20th. [Dkt. #210].
On June 16, 2014, Dr. Harris filed a Third Supplemental Declaration in which he addressed additional medical records submitted by Mr. Moore on June 11th. Dr. Harris reviewed the prescription for eight weeks of physical therapy, a referral for a psychological evaluation and a June 3rd prescription for hydrocodone 10mg. - acetaminophen 325mg. He noted that the records prescribed physical limitations of "weight bearing as tolerated." As to the hydrocodone prescription, he noted that there is no indication in the records that Mr. Moore has been prescribed that drug between his 5-day prescription issue on January 14th and the recent prescription of June 3rd. He noted that patients who are prescribed narcotic medications are generally restricted from performing work activities that are considered "safety sensitive." Patients are regularly permitted to take prescribed narcotic medication while performing non-safety sensitive, sedentary work duties such as secretarial, clerical or administrative work. Dr. Harris concluded that it continues to be his professional opinion that Mr. Moore does not have any ...