United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE
6, 2019, after a hearing that narrowed the issues in this
case down to a single Prison Rape Elimination Act
(“PREA”) claim, the Court amended the scheduling
order to reflect an August 15, 2019 discovery deadline and a
September 20, 2019 summary judgment deadline. (Docket
#78). When the Court issued that order,
Plaintiff had already filed four motions to appoint counsel.
(Docket #66, #67, #76, #77). Three of these motions (Docket
#66, #67, and #77) are identical. Pursuant to its trial
scheduling order, which explained that the Court would not
consider motions to appoint counsel until after the close of
discovery, the Court did not decide these motions.
See (Docket #19 at 6). After the Court issued the
amended scheduling order, Plaintiff filed another motion to
appoint counsel, (Docket #80), and a motion for sanctions
against Defendants, (Docket #79), in which he claimed that
Defendants had destroyed evidence because the video of the
event in question omitted Defendant Nathan Haynes
(“Haynes”)'s inappropriate sexual comments,
which were made while Plaintiff was strapped to a bed.
Plaintiff claims that this video also omits footage of
Defendants pulling him down a set of stairs by his neck.
(Docket #79 at 3). That motion for sanctions is now fully
briefed. On July 23, 2019, Plaintiff was released from
prison. In August 23, 2019, after Plaintiff failed to appear
for a deposition, Defendants filed a motion to dismiss for
failure to prosecute. (Docket #88). The Court afforded ample
time for Plaintiff to respond, but he has yet to oppose the
motion to dismiss, or otherwise attempt to proceed with his
case. For the reasons explained below, the case will be
dismissed for failure to prosecute, and the motions for
sanctions and to appoint counsel will be denied as moot.
Rule of Civil Procedure 41(b) provides that “[i]f the
plaintiff fails to prosecute or to comply with these rules or
a court order, a defendant may move to dismiss the action or
any claim against it.” Any such dismissal
“operates as an adjudication on the merits.”
Id. Courts have considerable discretion in
determining whether to dismiss an action for failure to
prosecute. Locascio v. Teletype Corp., 694 F.2d 497,
499 (7th Cir. 1982). Plaintiff was warned, in the original
scheduling order, that “failure to make a timely
submission. . .may result in the dismissal of this action for
failure to prosecute.” (Docket #19 at 6). Additionally,
it is every litigant's first responsibility to provide
accurate, up-to-date contact information to the Court so that
orders and correspondence from opposing parties may be timely
received. See Gen. L.R. 5(a)(4); Griffin v. City
of Chi., No. 17-CV- 701-JPS, 2017 WL 3217067, at *1 n.1
(E.D. Wis. July 28, 2017).
was released from prison on July 23, 2019, and provided
notice of his new address to the Court. (Docket #85).
However, Defendants inform the Court that Plaintiff was
subsequently re-arrested and detained in Racine County Jail
from July 29, 2019 to September 11, 2019. (Docket #89 at 3).
Plaintiff's deposition was scheduled for August 9, 2019.
At no point after his re-arrest did he notify the Court or
opposing counsel of his change in address, or otherwise move
to reschedule the depositions to a time when he could attend.
Therefore, the fault for missing his deposition rests with
him alone. Plaintiff has not submitted anything further to
the Court since his release from prison on July 23, 2019.
Crucially, he has not opposed Defendants' motion to
dismiss for failure to prosecute. The case, therefore, will
be dismissed for Plaintiff's failure to prosecute.
IT IS ORDERED that Plaintiff's motions
to appoint counsel (Docket #66, #67, #76, #77, and #80) be
and the same are hereby DENIED as moot;
IS FURTHER ORDERED that Plaintiff's motion for
sanctions (Docket #79) be and the same is hereby
DENIED as moot;
IS FURTHER ORDERED that Defendants' motion to
dismiss (Docket #88) be and the same is hereby
IS FURTHER ORDERED that Plaintiff's PREA claim
be and the same is hereby DISMISSED with
IS FURTHER ORDERED that this action be and the same
is hereby DISMISSED.
Clerk of the Court is directed to enter judgment accordingly.
Dated: Milwaukee, Wisconsin, this 31st day of October, 2019.
Four of Plaintiff's earlier
claims-including claims that various defendants strapped him
to a bed, ignored his threats of self-harm, sprayed him with
noxious gas, and forced him to take a scalding hot
shower-were dismissed by stipulations of the parties. The
stipulations did not specify whether the dismissals were with
or without prejudice. See (Docket #73, #74). Federal
Rule of Civil Procedure 41(a)(1)(B) provides that
“[u]nless the notice or stipulation states otherwise,
the dismissal is without prejudice.” Accordingly, these
claims were dismissed without prejudice.
Given the parties' stipulated
dismissal of the only claim pending against Defendant
Brittany McCutcheon (Docket #73), she has been ...