United States District Court, N.D. Illinois, Eastern Division
B. Michael Schneider, Plaintiff,
County of Will and Michael O'Leary, Defendants.
MEMORANDUM OPINION AND ORDER
Honorable Thomas M. Durkin United States District Judge
Michael Schneider, pro se, alleges that Defendants violated
the Eighth Amendment when they held him in jail for an extra
ten days after a Will County circuit judge ordered him jailed
for criminal contempt. See Schneider v. County of
Will, 528 Fed.App'x 590, 595 (7th Cir. 2013); 366
Fed.App'x 683 (7th Cir. 2010). Defendants have moved the
Court to dismiss Mr. Schneider's case for want of
prosecution because he has failed to adequately prepare for
trial and participate in preparation of the joint final
pretrial memorandum. R. 330. Mr. Schneider walked out of the
last final pretrial hearing in this case on August 18, 2016,
after tendering to the Court and defense counsel a motion to
recuse the undersigned judge. The Court denied Mr.
Schneider's recusal motion. R. 362. In light of Mr.
Schneider's abandonment of the pretrial process and
apparent intent not to continue to prosecute his case before
the undersigned judge, the Court reluctantly grants
Defendants' motion and dismisses this case with prejudice
for want of prosecution. A review of the lengthy procedural
history of this case requires this result.
may dismiss an action if a party “is substantially
unprepared to participate-or does not participate in good
faith-in [a pretrial] conference.” Fed.R.Civ.P.
16(f)(1)(B); Fed.R.Civ.P. 37(b)(2)(A)(v). “Because
dismissal with prejudice for want of prosecution is a harsh
sanction, ” before imposing such a sanction, courts
should “weigh several factors” including
“whether the litigant has ignored previous court
orders, the extent of delays, prejudice to other parties, and
the availability of other sanctions.” Rollins v.
Murphy, 598 Fed.App'x 449, 450 (7th Cir. 2015).
Whether to dismiss a case for want of prosecution is within
the district court's discretion. See Schindler v.
Advocate Healthcare, 619 Fed.App'x 516, 517 (7th
Andersen originally presided over this case, which was filed
on May 27, 2008. R. 1. While Judge Andersen was presiding,
Mr. Schneider filed a motion seeking to disqualify defense
counsel as improperly appointed by the Will County
State's Attorney. R. 17. Judge Andersen denied that
motion. R. 29. Mr. Schneider's motion to vacate Judge
Andersen's order was also denied. R. 40.
Judge Andersen's retirement the case was reassigned to
Judge Gettleman, and then Judge Dow, who set an initial trial
date of December 8, 2014. That date was vacated when Judge
Dow recused himself because of a personal or familial
relationship with Defendants, see R. 243, and the
case was transferred to Judge Marovich. R. 244. Two months
later on August 11, 2014, Judge Marovich exercised his right
as a senior judge to request that the case be reassigned.
See R. 250. At that point, the undersigned judge
became the fifth judge to preside over the case. Id.
hearing on September 3, 2014, the Court sought to schedule a
new trial date. Mr. Schneider represented to the Court that
he had recently been evicted from his home, but that a trial
date in 2015 would be “no problem.” Trial was set
for February 2, 2015. R. 254. One month later on October 2,
2014, Mr. Schneider sought reconsideration of the ruling
Judge Andersen had made six years earlier denying Mr.
Schneider's motion to disqualify defense counsel. R. 255.
The Court denied the motion for reconsideration on October
28, 2014. R. 261.
November 25, 2014, Mr. Schneider filed an interlocutory
appeal of the Court's denial of his motion for
reconsideration, without first seeking leave to do so. R.
263. His decision to file a notice of appeal required the
Court to vacate the February 2, 2015 trial date as the date
for a ruling on the interlocutory appeal was of course
unknown. R. 276. The Seventh Circuit denied Mr.
Schneider's appeal as premature on January 22, 2015.
See R. 283. At a status hearing on January 29, 2015,
Mr. Schneider represented to the Court that he was seeking a
rehearing, and on that basis the Court deferred scheduling a
new trial date. The Seventh Circuit denied Mr.
Schneider's petition for a rehearing on March 2, 2015. R.
282. The proceedings were delayed until October 28, 2015,
both at the parties' requests (including two requests by
Mr. Schneider) and because the Court-based on Mr.
Schneider's statements at the January 29, 2015
hearing-was under the (apparently mistaken) impression that
he intended to file a petition for certiorari to the United
States Supreme Court. Eventually, the Court, with Mr.
Schneider's consent, set a new trial date of April 25,
2016 at a hearing on October 28, 2015. R. 292.
April 25, 2016 trial date approached, Mr. Schneider renewed
his efforts to have defense counsel disqualified by filing
another motion for reconsideration on this issue on January
15, 2016, see R. 293, which the Court denied.
See R. 301. Mr. Schneider yet again sought
reconsideration on March 1, 2016, see R. 302, which
the Court again denied. See R. 304. Mr. Schneider
then sought permission to file a second interlocutory appeal
on this issue on March 11, 2016, see R. 306, which
the Court denied. See R. 311. Mr. Schneider also
filed a motion in limine to disqualify defense counsel on
April 4, 2016, R. 317, which was denied at the first final
pretrial conference on April 21, 2016. R. 333.
appears that Mr. Schneider's focus on seeking to have
defense counsel disqualified caused him to miss the critical
deposition of the state court judge who held him in contempt.
That deposition was noticed for March 4, 2016, see
R. 330-1 at 18, and defense counsel also sent emails and
letters to Mr. Schneider on several occasions through
February 2016 in an attempt to ensure that Mr. Schneider was
aware of the deposition date and that he would attend.
See 330-1. The deposition was necessary because the
state court judge was going to be out of the country during
the trial. Mr. Schneider responded to several of the emails,
but never indicated whether he would attend the deposition,
and instead continued to press his theory that defense
counsel were not properly appointed. See R. 330-1 at
29, 35- 36, 44. It appears that Mr. Schneider should have
been able to attend the deposition because on the day of the
deposition which was to take place at defense counsel's
office in Joliet, Illinois (approximately seven miles from
Mr. Schneider's residence in New Lenox, Illinois), he
instead traveled more than 40 miles to the Dirksen courthouse
to file a “supplemental pleading” yet again
seeking defense counsel's disqualification. See
Schneider focused on this particular disqualification issue
to such an extent that he also failed to participate in
preparation of the final pretrial memorandum. Defense counsel
represented on the record that during the time period when
Mr. Schneider was devoting significant time to preparing and
filing multiple motions attempting to have defense counsel
disqualified, he was also failing to respond to defense
counsel's communications regarding preparation of the
final pretrial memorandum. See R. 330-1. Mr.
Schneider failed to submit a witness list, exhibit list,
proposed jury instructions, proposed voir dire questions, or
any comment or objection regarding defense counsel's
pretrial submissions. See R. 326.
April 12, 2016, Mr. Schneider filed a motion for a new trial
date because he was evicted from his home on March 31, 2016.
R. 324. Considering the age of the case, the number of times
the trial had already been postponed, the length of time Mr.
Schneider had already had to prepare for the April 25, 2016
trial date, and the fact that Mr. Schneider had shown that he
was able to prepare and file multiple briefs relating to the
disqualification issue in the time period surrounding his
eviction, the Court denied Mr. Schneider's motion for a
new trial date at a hearing on April 18, 2016. R. 329.
Schneider's failure to participate in the preparation of
the final pretrial memorandum was the primary basis for
Defendants' motion to dismiss for failure to prosecute.
See R. 330. At a hearing on April 20, 2016, Mr.
Schneider represented that he had not participated in the
preparation of the final pretrial order because he had become
“homeless.” But according to Mr. Schneider, he
was not evicted until March 31, and even after that date he
continued to prepare and file documents with the Court
relating to the disqualification issue, and also ironically
to bar the introduction into evidence of the video recording
of the deposition of the state court judge. See R.
317; R. 319; R. 324. Mr. Schneider's filing activity in
this case belies his claim that he could not participate in
preparing the final pretrial memorandum because of his
personal housing circumstances. Instead, the record reveals
that Mr. Schneider chose to focus his time and energy on
seeking defense counsel's disqualification rather than
preparing for a trial on the merits of his claims.
Schneider participated in the final pretrial conference on
April 21, 2016. Unsurprisingly, Mr. Schneider appeared
largely unprepared for the trial scheduled for four days
later. At a subsequent hearing the next day on April 22,
2016, Mr. Schneider also represented to the Court that he was
living out of his car at that time, and only had internet
access at the public library. For these reasons, the Court
found that it would be inappropriate to use the Court's
resources (including juror time) to conduct a trial that Mr.
Schneider was clearly not at all prepared to proceed with.
Rather than dismiss the case at that time, which would have
been appropriate pursuant to Federal Rules of Civil Procedure
16(f)(1)(B) and 37(b)(2)(A)(v), the Court vacated the April
25 trial date, R. 334, and requested Elizabeth Harrington, an
experienced member of the trial bar, of the law firm of Moran
Lewis & Bockius LLP, to volunteer to represent Mr.
Schneider. R. 336. Mr. Schneider had filed a petition for the
appointment of counsel before Judge Dow on December 18, 2013,
R. 222, which he later withdrew rather than submit a
financial affidavit that would be available to defense
counsel. See R. 232; R. 233; R. 234. Mr. Schneider
agreed to allow Ms. Herrington to represent
trial date was set for August 22, 2016. According to defense
counsel, Ms. Herrington and two of her colleagues at Morgan
Lewis diligently prepared for trial, including serving
witness subpoenas and drafting motions in limine and other
pretrial materials. But on July 28, 2016, Mr. Schneider's
Morgan Lewis attorneys filed a motion to withdraw. R. 345. In
their motion, the Morgan Lewis attorneys stated that they had
been unable to convince Mr. Schneider to attend any meetings
to prepare for trial since May 6, 2016, and had not received
any communication at all from Mr. Schneider since July 10,
2016. Id. at 2. Additionally, on July 23, 2016, Mr.
Schneider filed a mandamus petition with the Illinois Supreme
Court seeking to pursue his theory that defense counsel were
improperly appointed by the Will County State's Attorney.
See R. 345-1. At a hearing on August 2, 2016, Mr.
Schneider told the Court that he no longer wanted to be
represented by the Morgan Lewis attorneys. R. 353 at 6. On
that basis, and on the basis of the representations made in
the Morgan Lewis motion, the Court granted their motion to
withdraw on August 2, ...