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Cynthia Herndon v. Housing Authority of South Ben, 17-3572 (2018)

Court: Court of Appeals for the Seventh Circuit Number: 17-3572 Visitors: 43
Judges: Per Curiam
Filed: Jun. 04, 2018
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 24, 2018 Decided June 4, 2018 Before DIANE P. WOOD, Chief Judge JOEL M. FLAUM, Circuit Judge DIANE S. SYKES, Circuit Judge No. 17-3572 CYNTHIA M. HERNDON, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Indiana, South Bend Division. v. No. 3:15 CV 169 HOUSING AUHORITY OF SOU
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                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1




                United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                                Submitted May 24, 2018
                                 Decided June 4, 2018

                                        Before

                               DIANE P. WOOD, Chief Judge

                               JOEL M. FLAUM, Circuit Judge

                               DIANE S. SYKES, Circuit Judge



No. 17-3572

CYNTHIA M. HERNDON,                            Appeal from the United States District
    Plaintiff-Appellant,                       Court for the Northern District of
                                               Indiana, South Bend Division.
      v.
                                               No. 3:15 CV 169
HOUSING AUHORITY OF
SOUTH BEND, INDIANA, and                       James T. Moody,
JOANNE WATFORD,                                Judge.
    Defendants-Appellees.

                                      ORDER

       Cynthia Herndon returns to this court after we previously revived a piece of her
suit against the Housing Authority of South Bend and its property manager Joanne
Watford. See Herndon v. Housing Authority of South Bend, 670 F. App’x 417 (7th Cir.
2016). Following our decision, Herndon was free to pursue her allegations that
defendants had racially discriminated against her and retaliated against her, each in
violation of the Fair Housing Act. 42 U.S.C. §§ 3601–3619.
No. 17-3572                                                                         Page 2

       But back before the district court, Herndon squandered the opportunity to
prosecute her case. On remand, the district court had initiated the discovery process by
setting a deadline for the parties to file a joint discovery plan and scheduling a pretrial
conference. It warned the parties that failure to comply with the order might result in
sanctions under Federal Rule of Civil Procedure 16(f). Yet Herndon mysteriously
refused to engage with the defendants’ attempts to move forward with the case. She did
not participate in discovery meetings, forcing the defendants to submit their discovery
plan without her input. Herndon then skipped the preliminary pretrial conference.

        After Herndon failed to appear, the presiding magistrate judge placed several
calls to her, both to the number entered on the docket and numbers that the defendants
provided to the court. Those calls went unanswered. Herndon’s absence was never
explained. Because of her failure to attend, the magistrate judge ordered that Herndon
appear in-person at a hearing to show cause as to why she should not be held in
contempt for skipping the pretrial conference. The court’s order warned Herndon that
failure to attend might lead to additional sanctions, “including dismissal of the case.”
Herndon neither attended the show-cause hearing nor explained her absence. More
phone calls went unanswered. Despite her repeated absences, Herndon continued to
file unrelated motions with the district court. A month after Herndon had neglected to
appear at the show-cause hearing, the defendants filed a motion to dismiss for want of
prosecution. Herndon never responded to that motion. And so the district court
dismissed Herndon’s suit a second time and entered final judgment in favor of the
defendants.

        Herndon responded by filing in this court what she styled as a Petition for Writ
of Mandamus. We construed it as a notice of appeal and transferred the filing to the
district court. Once it was docketed, we opened this timely appeal. Two weeks later,
Herndon filed another notice of appeal with the district court. That notice was filed
more than 30 days after the district court’s final judgment, and so we ordered Herndon
to file a memorandum explaining why the latter appeal should not be dismissed for
lack of jurisdiction. She did not respond, and the appeal was dismissed. Our dismissal
order noted that the appeal now before us was timely and could proceed to briefing.

        Now briefed, Herndon’s appeal raises several issues. As best we can tell, she
argues that the district court lacked jurisdiction to dismiss her case. She accuses the
court of contradicting our prior ruling, of being biased against her, and of either
ignoring the merits of her civil complaint or independently violating an unidentified
right. Each of these is meritless. And in misdirecting her attention, Herndon has
No. 17-3572                                                                        Page 3

neglected to mention her failure to comply with the district court’s order or why she did
not display the least bit of attention to her case.

        Federal Rule of Civil Procedure 16(f) authorizes a court to impose just sanctions
if a party fails to appear for a pretrial conference. Additionally, Rule 41(b) permits a
court to dismiss an action “[i]f the plaintiff fails to prosecute or to comply with these
rules or a court order.” When a district court invokes these rules to dismiss a suit for
failure to prosecute, we review the decision under an abuse-of-discretion standard. See
Nelson v. Schultz, 
878 F.3d 236
, 239 (7th Cir. 2017). Dismissal of a case for lack of
prosecution is a suitable sanction “where the plaintiff’s ‘neglect in pursuing his case
was sufficiently serious to warrant dismissal.’” 
Id. (quoting McInnis
v. Duncan, 
697 F.3d 661
, 664 (7th Cir. 2012)). Repeatedly violating a court’s discovery orders and failing to
attend scheduled hearings are significant enough to warrant dismissal, even if lesser
sections also may have been appropriate. 
Nelson, 878 F.3d at 239
; see also Dupree v.
Hardy, 
859 F.3d 458
, 463 (7th Cir. 2017) (“The sanction of dismissal is appropriate for
plaintiffs like Dupree who fail to attend multiple hearings and have been warned of the
possibility of dismissal.”). That is exactly what happened here. Herndon failed on
multiple occasions to participate in discovery conferences or to comply with court
orders. She had been warned explicitly that such conduct risked sanctions, including
the possible dismissal of her suit. There was no abuse of discretion here.

      The judgment of the district court is AFFIRMED.

Source:  CourtListener

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