Dunphy v. McKee

• Decision Date: 22 January 1998
• Docket Number: No. 96-2266,96-2266
• Citation: 134 F.3d 1297
• Parties: Lawrence DUNPHY, Plaintiff-Appellant, v. Margaret McKEE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1297

134 F.3d 1297

39 Fed.R.Serv.3d 741

Lawrence DUNPHY, Plaintiff-Appellant, v. Margaret McKEE, et al., Defendants-Appellees.

No. 96-2266.

United States Court of Appeals Seventh Circuit.

Argued May 14, 1997.

Decided Jan. 22, 1998.

Michael G. Cheronis (argued), Oak Park, IL, for Plaintiff-Appellant.

Jessie Wang-Grimm, Office of the Attorney General, Chicago, IL, Michael P. Doyle (argued), Office of the Attorney General, Civil Appeals Division, Chicago, IL, Mitchell B. Katten, O'Rourke & Griffin, Chicago, IL, for Defendants-Appellees.

Before CUMMINGS, COFFEY, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Lawrence Dunphy has been trying for more than five years to pursue an action under 42 U.S.C. § 1983 against the warden and several staff members of the Statesville Prison Facility and the Illinois Department of Corrections. His efforts at the district court level were unavailing, however, because the lawyer the judge selected for him persistently failed to comply with the district court's scheduling and case management orders. Despite the fact that Dunphy himself conscientiously kept the court informed of his whereabouts, filed timely requests for continuances when he knew he could not be present (because he was incarcerated), and was ready to appear immediately after he was able to be back in Illinois, the district court eventually dismissed his case for want of prosecution. Dunphy appealed pro se, and we appointed counsel--unfortunately, the same counsel who performed so badly at the district court level. Under the circumstances of this case, we find that the court may have abused its discretion in ordering the dismissal without any explanation, and we remand for further proceedings.

On May 28, 1992, Dunphy filed a pro se action under § 1983 against the state defendants, Margaret McKee, Salvador Godinez, Edward Green, Gary Wintersteen, and Christopher Hughes, claiming that they violated his civil rights by disobeying a medical order to give him a single-person cell with a low bunk on a low gallery. Almost a year later, on April 9, 1993, the district court granted Dunphy's request for court-appointed counsel, naming attorney Michael Cheronis to represent him. In an inauspicious beginning, Cheronis failed to appear on June 17, 1993, at the first status conference after his appointment. The district court accordingly entered an order warning that "[s]hould counsel for plaintiff fail to appear for the next hearing this case will be dismissed for want of prosecution."

The next status conference was scheduled for July 13, 1994. Apparently Cheronis attended that one, at which the court scheduled a pretrial hearing for August 8, 1994, and entered an order directing Dunphy to appear at the hearing "either in person or be [sic] counsel in order to report to the court what has been done in this case and how he [sic] is to proceed." Again, the court cautioned that "[f]ailure to appear will result in this case being dismissed for want of prosecution." In spite of the warning, neither Dunphy (who was in prison) nor Cheronis appeared at the August hearing, and the court entered an order dismissing the case. On September 1, 1994, Dunphy personally wrote to the court asking for reinstatement of his case. The court granted his request and set a status hearing for July 11, 1995. After resetting the hearing several times, for reasons not disclosed in the record, the court on August 7, 1995, fixed September 12, 1995, as the date for the hearing.

September 12, 1995, came, but neither Dunphy nor his lawyer did. As before, the court entered an order dismissing Dunphy's case without prejudice for want of prosecution. Once again, Dunphy himself wrote to the court asking for a new status hearing to be reset "to after April 1996," when he expected to be paroled back to Illinois. The court reopened the case and set the hearing for April 30, 1996, and warned again of a possible dismissal for want of prosecution if no one showed up. On March 7, 1996, well in advance of the April 30 date, Dunphy wrote to the court to ask that the hearing be pushed back until the summer. He explained that he would be paroled back to Illinois, from Colorado, on July 15, 1996, and thus he would not be available to attend until that time. Dunphy attached to his letter a printout of his Colorado Department of Corrections official time computation report, which showed that his mandatory release date was July 15, 1996, and furnished information about his earned time and eligibility for a reduction in sentence.

Notwithstanding Dunphy's March 7 letter, the court proceeded with the status conference on April 30, 1996. As before, Cheronis failed to show up, and Dunphy obviously could not appear. This time the court entered an order dismissing the case for want of prosecution. On May 8, 1996, the court reduced its order to a final judgment, from which Dunphy has appealed (not surprisingly, by filing his notice of appeal pro se).

Throughout the time the case was pending, Dunphy was careful to keep the court notified of his whereabouts. The record shows seven such change of address notices:

                     Centralia Correctional Center         6/18/92
                     Sheridan Correctional Center           8/6/92
                     Chester Correctional Center            9/1/92
                     6944 S. Aberdeen, Chicago            12/21/92
                     Cincinnati Ohio Correctional Center   7/20/93
                     Elgin Mental Health Center             9/1/94
                     Colorado Department of Corrections     9/5/95
                

Not only that, but in at least one letter (informing the court about the Colorado facility), Dunphy thoughtfully furnished the court with the various aliases he used: "Lawrence Dunphy, AKA Timothy Feemster, Develin Williams." In the meantime, it appears that Cheronis was doing almost nothing with the case. In a footnote to his appellate brief, the point of which is unclear, Cheronis informs us that "[a]ppointed counsel had only one telephone conversation with Plaintiff during August 1994." At oral argument Cheronis clarified that he meant that he had only one conversation with Dunphy during the entire period of his representation, rather than in that particular month, and that this conversation was all of two minutes long. It thus appears that although the district court was at all times aware of Dunphy's location, Cheronis (who claimed to have tried to contact Dunphy several times) was unable to find him during the entire three years of his representation, with the exception of the single phone call.

The legal question before us is one of first impression: do the standards for dismissing an action for want of prosecution in a case where an indigent plaintiff has court-appointed counsel, or counsel recruited by the court to serve in a pro bono capacity, vary at all from the standards that would apply if counsel were retained? Put in a slightly different way, are the guidelines governing the district court's discretion in the case of retained counsel, which we described at some length in Ball v. City of Chicago, 2 F.3d 752 (7th Cir.1993), adequate to cover the case of court-appointed counsel? If so, did the district court here abuse its discretion in dismissing Dunphy's case? If not, what additional considerations should be taken into account when counsel is court-appointed, and how does Dunphy's case fare under them?

We begin with several well established propositions. First, as the Supreme Court held in Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), the district courts have the authority to dismiss complaints "for failure ... to prosecute or to comply with ... any order of the court" on motion of the defendant, id. at 630, 82 S.Ct. at 1388, quoting Fed. R. Civ. P. 41(b), or sua sponte as part of the "control necessarily vested in courts ... to achieve the orderly and expeditious disposition of cases." 370 U.S. at 630-31, 82 S.Ct. at 1388. Dismissal for failure to prosecute is an extraordinarily harsh sanction, to which courts should resort "only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailable." In the Matter of Bluestein & Co., 68 F.3d 1022, 1025 (7th Cir.1995) (per curiam) (quoting GCIU Employer Retirement Fund v. Chicago Tribune Co., 8 F.3d 1195, 1199 (7th Cir.1993), in turn quoting Pyramid Energy, Ltd. v. Heyl & Patterson, Inc., 869 F.2d 1058, 1061 (7th Cir.1989) (emphasis omitted in GCIU)). Appellate review of these orders is only for abuse of discretion, see Bluestein, 68 F.3d at 1022; Johnson v. Kamminga, 34 F.3d 466, 468 (7th Cir.1994). Nonetheless, abuse of discretion review is not the same thing as a rubber stamp, and we have not hesitated to find such an abuse where the facts warranted. See Bluestein, 68 F.3d at 1025-26; Penny v. Shansky, 884 F.2d 329, 330 (7th Cir.1989) (pro se plaintiff); Sisk v. United States, 756 F.2d 497, 499-500 (7th Cir.1985) (same); Heidelberg v. Hammer, 577 F.2d 429 (7th Cir.1978) (same). Accord, Hernandez v. Whiting, 881 F.2d 768, 771 (9th Cir.1989); Holt v. Pitts, 619 F.2d 558, 562 (6th Cir.1980).

Here, we have the classic problem of the faithless agent (Dunphy's lawyer), but under circumstances in which the client had no voice in choosing the lawyer--indeed, where the judge himself first decided that Dunphy could not handle the case on his own, and then chose a lawyer for him who might as well have been a potted plant. There is language in Link that suggests that the district court would have been entitled to hold Dunphy responsible for his lawyer's failure to appear at the many scheduled conferences, if Cheronis had been retained rather than appointed:

There is certainly no merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now...