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Fred Cartwright v. Silver Cross Hospital, 19-2595 (2020)

Court: Court of Appeals for the Seventh Circuit Number: 19-2595 Visitors: 6
Judges: Sykes
Filed: Jun. 18, 2020
Latest Update: Jun. 19, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 19-2595 FRED CARTWRIGHT, Plaintiff-Appellant, v. SILVER CROSS HOSPITAL and CROTHALL HEALTHCARE, INC., Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 CV 6759 — John Robert Blakey, Judge. _ SUBMITTED MARCH 19, 2020 — DECIDED JUNE 18, 2020 _ Before MANION, SYKES, and ST. EVE, Circuit Judges. SYKES, Circuit Judge. Fred Cartwright sued his former em
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                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 19-2595
FRED CARTWRIGHT,
                                                 Plaintiff-Appellant,
                                v.

SILVER CROSS HOSPITAL and
CROTHALL HEALTHCARE, INC.,
                                              Defendants-Appellees.
                    ____________________

        Appeal from the United States District Court for the
          Northern District of Illinois, Eastern Division.
          No. 15 CV 6759 — John Robert Blakey, Judge.
                    ____________________

    SUBMITTED MARCH 19, 2020 — DECIDED JUNE 18, 2020
                ____________________

   Before MANION, SYKES, and ST. EVE, Circuit Judges.
    SYKES, Circuit Judge. Fred Cartwright sued his former
employer asserting claims of discrimination based on his
race, sex, and age. Throughout four years of litigation, he
repeatedly failed to appear for his deposition, missed a
status hearing, would not follow the local rules regarding
motion practice, refused to respond to discovery despite
repeated orders to do so, and ignored the judge’s multiple
2                                                    No. 19-2595

warnings that his conduct would lead to dismissal of the
suit. Despite this obstructive behavior, the judge continued
to recruit a succession of pro bono attorneys to assist
Cartwright, each of whom invested many hours of valuable
time in the case before moving to withdraw because the
client would not cooperate. After permitting the fourth—yes,
fourth—volunteer lawyer to withdraw, the judge finally
dismissed the case as a sanction for want of prosecution.
    We affirm the dismissal and take this opportunity to re-
mind judges that they need not and should not recruit
volunteer lawyers for civil claimants who won’t cooperate
with the basic requirements of litigation. Pro bono represen-
tation of indigent civil litigants is a venerable tradition in the
legal profession. The courts must be careful stewards of this
limited resource.
                         I. Background
    In August 2015 Fred Cartwright filed a pro se complaint
against his former employer Silver Cross Hospital and its
management company Crothall Healthcare alleging claims
of discrimination based on his race and sex in violation of
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e; discrimi-
nation based on his race in violation of 42 U.S.C. § 1981; and
age discrimination in violation of the Age Discrimination in
Employment Act, 29 U.S.C. § 623. The district judge ap-
pointed counsel for Cartwright through the Settlement
Assistance Program in the Northern District of Illinois for
the limited purpose of attempting to negotiate an early
settlement. The parties did not reach an agreement, so the
pro bono attorney was relieved of the limited representation.
No. 19-2595                                                   3

    While representing himself, Cartwright failed to respond
to the defendants’ discovery requests and refused to sched-
ule his deposition. Cartwright also filed many motions to
compel discovery and moved to hold the defendants in
contempt despite the court’s order that he must meet and
confer with the defendants concerning these discovery
disputes. Without explanation and despite Cartwright’s
refusal to cooperate, the judge recruited a lawyer to repre-
sent him pro bono. Counsel filed an amended complaint
adding several additional claims. But shortly after that filing,
the judge permitted the attorney to withdraw because of
fundamental disagreements with Cartwright about the case.
    The judge—again without explanation—recruited anoth-
er pro bono lawyer to assist Cartwright and noted that this
would be the final time. With Cartwright represented once
again, the parties engaged in another unsuccessful settle-
ment conference and then continued with discovery. But
after 14 months and more than 530 hours of work, this third
attorney (and his associate) also moved to withdraw citing
substantial   and    irreconcilable  disagreements    with
Cartwright.
    The judge thereafter entered partial summary judgment
for the defendants on two of Cartwright’s claims, narrowing
the case. Cartwright responded with multiple motions,
including several accusing the judge of bias and demanding
that he recuse himself. At the same time, the defendants
moved to compel discovery and requested sanctions because
Cartwright refused to answer interrogatories or provide
other discovery responses in violation of the Federal Rules of
Civil Procedure. Cartwright refused to respond to these
motions despite the judge’s repeated orders to do so. He also
4                                                 No. 19-2595

missed a status hearing without notifying the court of any
scheduling conflicts.
    The judge ordered Cartwright to appear at the next hear-
ing and warned that “any future failure to appear may result
in a dismissal for want of prosecution.” Surprisingly, how-
ever, the order also explained that if Cartwright promised
that he would work with counsel in good faith, the court
would be “inclined to grant [p]laintiff yet another (and final)
opportunity to enjoy the professional assistance of recruited
counsel.”
    Prior to the rescheduled status hearing, the defendants
moved to dismiss the case with prejudice for failure to
prosecute because of Cartwright’s persistent refusal to
respond to discovery and noncompliance with the court’s
orders. Cartwright appeared at the status hearing and
assured the judge that he would work with counsel in good
faith. Although Cartwright had repeatedly refused to follow
court orders and the rules of litigation, the judge recruited
yet another pro bono attorney to assist him. The judge held
the defendants’ motion to dismiss in abeyance to give newly
appointed counsel a chance to get up to speed on the case
and then denied it as moot.
    Several months later, on the eve of Cartwright’s sched-
uled deposition, his attorney notified the defendants that
Cartwright would not attend the deposition. No explanation
was given. Counsel then moved to withdraw based on
irreconcilable differences with the client. The judge granted
the withdrawal motion. The defendants again moved to
dismiss based on Cartwright’s continued obstructive con-
duct, including his failure to appear for his deposition, the
missed status hearing, and Cartwright’s persistent refusal to
No. 19-2595                                                   5

resolve discovery disputes or comply with court orders. The
judge took the motion under advisement and gave
Cartwright time to find new representation on his own.
   After four months with no appearance by new counsel,
the judge set a date for Cartwright’s deposition, cautioning
him that failure to appear “may result in dismissal of the
case with prejudice for failure to prosecute or otherwise to
comply with the orders of this [c]ourt.” Cartwright then
bombarded the court with multiple motions, including
several to cancel his deposition because of his anxiety. The
judge denied these motions but limited the deposition to a
four-hour session (with additional sessions, if necessary) to
address his concerns.
    Cartwright appeared at the deposition but refused to an-
swer many of counsel’s questions. He said that he was not
feeling well and that his doctor had advised him not to
attend. Because the defendants could not finish their ques-
tioning, the judge scheduled a date for Cartwright’s contin-
ued deposition, warning that his failure to appear “[would]
result in the case being dismissed for failure to prosecute this
case and for failure to comply with court orders.” The judge
also told Cartwright that none of his motions complied with
court rules or standing orders and that his continued non-
compliance could result in dismissal of the case. In addition,
the judge rejected Cartwright’s very belated attempt to file a
second amended complaint without leave of court, explain-
ing that “the rambling[,] 88-page filing” was not a proper
amendment but “merely contain[ed] a list of personal and
discovery-related grievances [p]laintiff has with [d]efen-
dants and their attorneys.”
6                                                 No. 19-2595

    When Cartwright failed to appear for his rescheduled
deposition, the judge at long last followed through on his
repeated warnings and dismissed the case with prejudice for
failure to prosecute. He noted that Cartwright did not seek a
continuance, “which would potentially have allowed de-
fense counsel to avoid the costs of coming to Chicago, yet
again, for the properly-noticed and long-overdue deposition
of [p]laintiff.” The judge also cited Cartwright’s “persistent
and willful failure to comply with the Federal Rules of Civil
Procedure, the Local Rules of this [c]ourt, and this [c]ourt’s
orders and standing orders.” By now it was June 2019, and
Cartwright had been litigating his case for nearly four years.
                        II. Discussion
     On appeal Cartwright does not engage with the district
court’s reason for dismissing his case but instead argues the
merits of his claims and accuses the judge of bias. We could
affirm on that basis alone. See Anderson v. Hardman, 
241 F.3d 544
, 545 (7th Cir. 2001). For completeness we note that this
case presents a clear “record of delay or contumacious
conduct” amply justifying a dismissal for failure to prose-
cute. Salata v. Weyerhaeuser Co., 
757 F.3d 695
, 699 (7th Cir.
2014) (quotation marks omitted). Cartwright’s willful failure
to appear at his deposition was cause enough. See Collins v.
Illinois, 
554 F.3d 693
, 696–97 (7th Cir. 2009). Yet his miscon-
duct was far broader in scope.
   During four years of litigation, Cartwright skipped three
scheduled depositions, missed a status hearing, filed dozens
of motions that violated local rules and the court’s standing
orders despite repeated warnings, served noncompliant
discovery responses and otherwise refused to satisfy with
his discovery obligations, and ignored many court orders.
No. 19-2595                                                              7

The judge warned Cartwright at least eight times that his
conduct put his lawsuit in jeopardy of dismissal before
finally following through and dismissing the case after
nearly four years of incorrigible obstruction.
    Indeed, the judge had ample grounds to dismiss the case
much earlier in the litigation. The defendants’ first motion to
dismiss for failure to prosecute catalogued Cartwright’s
wanton disregard of basic litigation obligations and court
rules. The case should have ended then. Had the judge
granted the first dismissal motion, the defendants would
have been spared the time and expense of defending against
a plaintiff so obviously unwilling to prosecute his own case.
   Inexplicably, the judge persisted in using the discretion-
ary authority codified in 28 U.S.C. § 1915(e)(1) to recruit a
succession of pro bono attorneys to represent this willfully
uncooperative litigant. That was a serious mistake. Setting
aside whether this case met the standards for recruitment of
volunteer counsel—the judge did not make any findings 1—
Cartwright’s persistent noncompliance with his discovery
obligations and the court’s orders should not have been
rewarded with pro bono legal assistance. Yet the judge
ensured that Cartwright enjoyed the professional services of
no fewer than four different volunteer attorneys. Three of
the court-appointed lawyers, who together spent nearly

1 A decision to recruit pro bono counsel for an indigent civil litigant
requires the court to make the following inquiries: “(1) has the indigent
plaintiff made reasonable efforts to obtain counsel or been effectively
precluded from [doing so];” and if so, “(2) given the difficulty of the case,
[does] the plaintiff appear to be competent to try it himself?” Pruitt v.
Mote, 
503 F.3d 647
, 654 (7th Cir. 2007) (quotation marks and citation
omitted).
8                                                 No. 19-2595

700 hours on the case, withdrew because of Cartwright’s
lack of cooperation.
   It’s worth reemphasizing that the assistance of a pro
bono lawyer in civil litigation is a privilege. See Pruitt v.
Mote, 
503 F.3d 647
, 649 (7th Cir. 2007). “The valuable help of
volunteer lawyers is a limited resource. It need not and
should not be squandered on parties who are unwilling to
uphold their obligations” as litigants. Dupree v. Hardy,
859 F.3d 458
, 462–63 (7th Cir. 2017).
                                                    AFFIRMED

Source:  CourtListener

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