NONPRECEDENTIAL DISPOSITION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 September 22, 2016*
Decided September 22, 2016
Before
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 15‐2783
THERESA L. DUKES, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:09‐cv‐1440‐JMS‐DML
ERIC COX, et al.,
Defendants‐Appellees. Jane E. Magnus‐Stinson,
Judge.
O R D E R
Theresa Dukes claims that in 2007 three law enforcement officers entered her
home without a warrant and beat her, in violation of the Fourth Amendment and
Indiana tort law. See 42 U.S.C. § 1983. She filed this action in 2009 but impeded its
progress for more than five years, prompting the district court finally to dismiss the
* We have unanimously agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 15‐2783 Page 2
case with prejudice for failing to prosecute and disobeying court orders. We affirm the
dismissal.
Dukes filed her complaint and proceeded pro se for seven months before
retaining four different law firms in succession. The first two firms withdrew quickly,
each citing a breakdown in their relationship with Dukes. After the second firm quit, a
magistrate judge extended various case‐management deadlines. Dukes later moved for
a further extension, asking to delay her deposition to accommodate both her search for
new counsel and an unspecified “medical condition,” which, she said, constrained her
to only half days of activity. The magistrate judge declined to give Dukes even more
time and warned that “continued effort to obtain counsel is an insufficient basis for
stalling the case . . . particularly because this is the second withdrawal of counsel.” But
the court did limit her deposition to a half day.
Despite the magistrate judge’s ruling, Dukes refused to be deposed. She
appeared as scheduled but left after reading a prepared statement saying that she
refused to participate without counsel and because of her “medical condition.” The
defendants responded by moving to dismiss the case as a sanction for violating a
discovery order and for failure to prosecute. The district judge concluded that dismissal
would be too harsh a sanction but ordered Dukes to go forward with her deposition
and also to pay the defendants’ costs related to the failed deposition.
Dukes then retained a third law firm, but six months later counsel again
withdrew, giving the same reason as previous counsel. Once more Dukes moved to
prolong the case while looking for new counsel, but the district judge refused to
postpone the trial date. The court explained that the lawsuit had been pending for three
years, that Dukes already had gone through three law firms, and that she had shown
herself capable of proceeding pro se. The judge warned Dukes that the case would
continue to trial whether or not she obtained counsel.
Meanwhile, in July 2012, before that third law firm had withdrawn, Dukes
violated a second discovery order. The magistrate judge had ordered Dukes to disclose
the identity of a potential witness, but instead Dukes filed a “notice of noncompliance.”
The defendants then filed a second motion to dismiss. Once again the district court
declined to dismiss the lawsuit.
Dukes’s case then was administratively closed for 14 months because of her
medical condition. Dukes had requested a stay and submitted medical records under
seal. Those documents do not disclose the diagnosis or detail its effects on Dukes, but
No. 15‐2783 Page 3
do show that she recently had received unspecified medical treatment for “severe
symptoms,” that she was being evaluated for surgery and treated with narcotics, and
that her doctors believed her condition may interfere with her ability to work, present
herself on demand, and “participate in a legal proceeding.” The district judge,
acknowledging uncertainty “about the exact nature” of Dukes’s medical condition,
ordered periodic medical updates from Dukes while the case remained dormant.
In January 2014, at the request of the district court, the defendants filed a report
detailing how they were being prejudiced by the closure. The defendants noted that,
because the underlying events had occurred more than six years earlier, the memories
and health of fact witnesses were deteriorating, and one witness already had passed
away. The district judge weighed the prejudice to the defendants, the court’s
responsibility to its calendar and other litigants, and Dukes’s medical condition, and
decided to reopen the case. The judge explained that Dukes’s medical records do not
“specify any physical restrictions or mental impairments she suffers from as a result of
her diagnoses that would prohibit her participation in the case.” The court also
reminded Dukes of her duty to diligently pursue her lawsuit and notified her of the
court’s power to dismiss her case if she failed to prosecute it.
Dukes then retained new counsel for the fourth time, but in short order she fired
that law firm. The firm’s principal advised the district court that Dukes disagreed with
him about what evidence could be presented at trial, and he explained that their
relationship had broken down and that Dukes had accused him of lying to her about his
capacity to litigate the case. The district judge granted Dukes’s request for a
continuance, giving her a total of six weeks to find other counsel.
In May 2015, after Dukes had violated the pretrial order by not exchanging trial
exhibits with the defendants and refusing to work with them on stipulations of fact,
voir dire questions, a joint case synopsis, jury instructions, and verdict forms, the
district judge granted the defendants’ third motion to dismiss. Dukes had not
responded to the defendants’ motion or appeared at a hearing on that motion, although
she did send the court an e‐mail saying that she would be absent because of unspecified
medical reasons. The judge acknowledged that dismissal with prejudice is an extreme
sanction but found that Dukes had engaged in a “repeated pattern of unreasonable
delay and contumacious conduct.” The court pointed to Dukes’s repeated violations of
discovery orders and other court orders, despite having previously been penalized with
costs when she refused to participate in her deposition. The district judge accepted that
Dukes “has some health issues” but doubted her “general and unsubstantiated
No. 15‐2783 Page 4
representations regarding the alleged effect that her health issues have on her ability to
comply with court orders and represent herself.” The court weighed the many delays
attributable to Dukes’s medical issues and repeated turnover of counsel against the
prejudice to the defendants, now that the case had dragged on for over five years, and
dismissed the lawsuit with prejudice. See FED. R. CIV. P. 16(f), 37(b)(2)(A)(v), 41(b).
Dukes moved for reconsideration, see FED. R. CIV. P. 59(e), arguing that she had not been
allowed to introduce additional evidence of her medical condition, but the district judge
replied that Dukes specifically had been given leave to submit further medical evidence
under seal but had not done so in the year since the case was reopened.
On appeal Dukes argues that the district court abused its discretion in dismissing
her case. She contends that the court did not adequately consider her medical condition
and her pro se status.
Dukes’s failure to cooperate in discovery and her violation of the court’s orders
warranted dismissal under either Rule 16(f) and 37(b) or Rule 41(b). See Salata v.
Weyerhaeuser Co., 757 F.3d 695, 699–700 (7th Cir. 2014) (affirming dismissal with
prejudice for failure to comply with discovery orders and pattern of delay); Aura Lamp
& Lighting, Inc. v. Int’l Trading Corp., 325 F.3d 903, 907–10 (7th Cir. 2003) (same). Dukes
had been warned multiple times by the magistrate judge and district court that refusing
to comply with court orders could lead to dismissal of her suit. And a previous
monetary sanction was ineffective in deterring Dukes from disobeying later court
orders. Though a district court should consider the medical disabilities of any litigant,
the court did not abuse its discretion in concluding that the five years’ delay and
prejudice to the defendants outweighed the difficulty Dukes might have faced in
proceeding with her lawsuit as scheduled, especially given that she had not submitted
any evidence of her current medical condition in the previous year. See Kasalo v. Harris
& Harris, Ltd., 656 F.3d 557, 561 (7th Cir. 2011) (explaining that before dismissing for
failure to prosecute district courts should consider frequency and magnitude of
plaintiff’s noncompliance with deadlines, the effect of noncompliance on court’s
calendar, the prejudice to defendants, and the efficacy of other sanctions); Emerson v.
Thiel Coll., 296 F.3d 184, 191 (3d Cir. 2002) (concluding that district court did not abuse
discretion in dismissing case despite litigant’s claim of medical condition when litigant
provided no substantiation of condition). Nor is Dukes’s pro se status during parts of
her suit an excuse for failing to comply with the court’s orders. See McInnis v. Duncan,
697 F.3d 661, 665 (7th Cir. 2012) (“[E]ven those who are pro se must follow court rules
and directives.”); Collins v. Illinois, 554 F.3d 693, 697 (7th Cir. 2009) (same).
No. 15‐2783 Page 5
Dukes next argues that the district court erred in “appointing” her to proceed
pro se. She contends that it was not her fault that her final attorney could not represent
her and that her medical condition prevented her from litigating on her own. But there
is no constitutional or statutory right to counsel in civil cases. See Romanelli v. Suliene,
615 F.3d 847, 851 (7th Cir. 2010); Pruitt v. Mote, 503 F.3d 647, 656 (7th Cir. 2007); Johnson
v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). And Dukes did not show that she was
indigent or ask the district court to recruit counsel pursuant to 28 U.S.C. § 1915(e)(1).
The district court granted Dukes six weeks’ continuance after she had fired her fourth
attorney. More was not required.
AFFIRMED.