UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

JONATHON FERGUSON, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Case No. 3:13-cv-417 

 ) 

CIVIL CITY OF SOUTH BEND, IN, et al., ) 

 ) 

 Defendants. ) 

REPORT AND RECOMMENDATION 

 This matter is before the court on the Verified Notice of Showing Good Cause [DE 42] 

filed by the plaintiff, Jonathon Ferguson, on January 6, 2016. 

Background 

 The plaintiff, Jonathon Ferguson, has filed six claims against the defendants, Charles 

Hurley, Interim Chief of Police of the South Bend Police Department, Patrolman Eric Mentz, 

PFC. Michael Stuk, and Officer Aaron Knepper of the South Bend Police Department, the City 

of South Bend, and Pete Buttigieg, Mayer of the City of South Bend. His six claims include 

three counts related to § 1983, two state law claims, and a discrimination claim based on the 

ADA. 

 Ferguson has alleged that he worked at a 7-Eleven convenience store in South Bend 

during the summer of 2012. During one of his shifts, Mentz, Stuk, and Knepper (officers) went 

to the 7-Eleven store, and Ferguson informed them that a drunk customer had just driven away 

and should be stopped. Ferguson has claimed that the officers refused to pursue the driver 

because they said it would have required them to complete a lot of paperwork. Ferguson then 

filed a complaint with the South Bend Police Department regarding the officers’ conduct. 

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 A few days after Ferguson filed his complaint, he saw one of the officers outside the 7-

Eleven in a marked patrol car. Ferguson then saw the officer walk toward his car, remove an 

object from his pocket, and bend over near the car’s tire. He has claimed that the officers then 

came into the store and told him to check his tire. Ferguson then went outside and discovered 

that his tire had been punctured. Ferguson later watched the store’s surveillance tape and saw 

only the officers near his vehicle. Therefore, Ferguson filed a second complaint with the South 

Bend Police Department alleging that one of the officers slashed his tire in retaliation for his first 

complaint. 

 After Ferguson filed his second complaint, he was called to the police department to 

watch the surveillance video of the tire slashing. He has claimed that the video he saw was 

altered from the video he watched initially at the store. An unnamed officer told Ferguson that 

juveniles were arrested for the tire slashing. Additionally, Captain Phil Trent appeared on ABC 

News and stated that a juvenile was arrested for the incident. Ferguson has claimed that no 

juveniles were in custody when the officer told him they were arrested. 

 Before the above news report, two of the named officers went into the 7-Eleven to 

purchase coffee and soda. Ferguson has claimed that they challenged him to take a “cinnamon 

challenge,” which required Ferguson to swallow a tablespoon of cinnamon. He claimed that the 

officers offered him thirty dollars and an Applebee’s coupon if he completed the challenge. 

After completing the challenge, Ferguson became ill and vomited for several hours, and the 

officers did not honor their offer. Ferguson also has claimed that the officers filmed the 

challenge and posted it on YouTube. 

 After discovery closed, this court ordered the parties to participate in a settlement 

conference with Magistrate Judge Andrew P. Rodovich. Ferguson and his attorney, Johnny 

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Ulmer, did not appear at the January 4, 2016 conference. Attorney Ulmer has claimed that he 

and Ferguson did not appear because he contracted food poisoning December 30, 2015 and had 

been sick for the previous week. He also has claimed that he was in the process of moving his 

office to a different building and that his illness prevented him from completing the move. 

Because he had not completed the move, Attorney Ulmer has alleged that he did not have staff, 

office phones, or a computer to contact the court. The defendants’ counsel has indicated that 

Attorney Ulmer emailed her on December 30, 2015, during the period he was sick, regarding a 

separate case. The defendants incurred $1,131.36 in fees and costs to attend the settlement 

conference. 

Discussion 

Federal Rule of Civil Procedure 16(f) allows a court to sanction a party for failing to 

appear at a scheduling or pretrial conference. The court may order any sanction authorized by 

Federal Rule of Civil Procedure 37(b)(2)(A) and may impose attorney’s fees and costs. Rule 

16(f). Rule 37(b)(2)(A) authorizes the court to order a variety of sanctions, including dismissing 

the action in whole or in part. The court should consider several factors when determining which 

sanctions to employ, including: “the frequency and magnitude of the [party’s] failure to comply 

with court deadlines, the effect of these failures on the court’s time and schedules, the prejudice 

to other litigants, and the possible merits of the plaintiff’s suit.” Rice v. City of Chicago, 333 

F.3d 780, 784 (7th Cir. 2003) (citing Williams v. Chi. Bd. of Educ., 155 F.3d 853, 857 (7th Cir. 

1998)). The court commits a legal error if it dismisses a suit after the first problem without 

exploring alternatives or explaining why alternative sanctions would not be worthwhile. Sroga 

v. Huberman, 722 F.3d 980, 982 (7th Cir. 2013). The sanctions must be proportional to the 

party’s misconduct. Collins v. Illinois, 554 F.3d 693, 696–98 (7th Cir. 2009). The court 

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measures this by weighing the proposed sanctions against the egregiousness of the party’s 

conduct. Barnhill v. United States, 11 F.3d 1360, 1368 (7th Cir. 1993). 

 Ferguson and Attorney Ulmer failed to appear at the January 4, 2016 settlement 

conference. Attorney Ulmer has claimed that they did not appear because he had a case of food 

poisoning that began seven days earlier. He also has claimed that he could not inform the court 

of his illness because he was moving offices and did not have staff to call the court or phones or 

a computer to contact the court. However, the defendants have demonstrated that Attorney 

Ulmer emailed their counsel during his illness. 

 Attorney Ulmer has not shown good cause for their failure to appear or to contact the 

court. The defendants demonstrated that he had access to email during his illness and that he 

could have called the court or opposing counsel from a cell phone or other non-office phone. 

Because Attorney Ulmer has not demonstrated good cause, this court RECOMMENDS that he 

pay the defendants’ fees and costs from the settlement conference, totaling $1,131.36. 

 This court also finds Ferguson’s claims questionable and possibly frivolous. Ferguson 

has claimed that the officers did not act in the scope of their employment when they slashed his 

tire, forced him to take the “cinnamon challenge,” and posted a video of the challenge online to 

defame him. It is unclear how § 1983 applies if the officers were not acting within the scope of 

their employment. It is also unclear how the City of South Bend is liable for their employees’ 

acts when the officers were not acting in their official capacities. Moreover, this court questions 

whether Ferguson can demonstrate damages redressable through a § 1983 action. Additionally, 

Ferguson has not alleged that the news report concerning the juveniles’ arrest ever mentioned 

him by name. Considering the above, this court RECOMMENDS that the court dismiss 

Ferguson’s claims as a sanction for failing to appear at the settlement conference. 

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 Pursuant to 28 U.S.C. ' 636(b)(1), the parties shall have fourteen days after being served 

with a copy of this Recommendation to file written objections. The failure to file a timely 

objection will result in the waiver of the right to challenge this Recommendation before either 

the District Court or the Court of Appeals. Federal of Civil Procedure 72; see Willis v. 

Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir. 1999); Johnson v. Zema Sys. Corp., 170 F.3d 734, 

739 (7th Cir. 1999). 

 ENTERED this 20th day of January, 2016. 

 /s/ Andrew P. Rodovich 

 United States Magistrate Judge 

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