UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

GARY JOE HARRISON, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:15-CV-37-PRC

)

TOWN OF GRIFFITH, GRIFFITH )

POLICE DEPARTMENT, JASON )

JAQUES, TONY MORRIS, GREG )

MANCE, and DAVID BORGETTI, )

Defendants. )

OPINION AND ORDER

This matter is before the Court on Defendants’ Verified Motion to Dismiss [DE 61], filed

by Defendants Town of Griffith, Griffith Police Department, Jason Jaques, Tony Morris, Greg

Mance, and David Borgetti on June 24, 2016.

Defendants ask the Court to dismiss this case pursuant to Federal Rule of Civil Procedure

41(b) for failure to prosecute. Rule 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.” Fed. R. Civ. P. 41(b). Under Rule 41(b), a court should only dismiss a case when “there

is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven

unavailing.” Brown v. Columbia Sussex Corp., 664 F.3d 182, 190 (7th Cir. 2011) (citing Maynard

v. Nygren, 332 F.3d 462, 467 (7th Cir. 2000)); see also Salata v. Weyerhaeuser Co., 757 F.3d 695,

699 (7th Cir. 2014). In most cases, the district court should warn the plaintiff that such a sanction

may be imposed. See Williams v. Chi. Bd. of Educ., 155 F.3d 853, 857 (7 th Cir. 1998); see also Ball

v. City of Chi., 2 F.3d 752, 759-60 (7th Cir. 1993) (indicating that “[t]here should be an explicit

warning in every case”). In considering such a dismissal, a district court should consider numerous

factors, including the frequency and magnitude of the plaintiff’s conduct, the prejudice to the
defendant, the disruption to the orderly administration of the court’s calendar, and the merits of the

underlying litigation. See Williams, 155 F.3d at 857; Bolt v. Loy , 227 F.3d 854, 856 (7th Cir. 2000). 

As set forth more fully in the Court’s Opinions and Orders at docket entries 64 and 67, the

Court extended the time for Plaintiff to respond to the Motion to Dismiss due to concerns that the

Court was not given the correct address for Plaintiff at the time his former attorney withdrew his

appearance. On August 15, 2016, Plaintiff filed a notice with the Court providing his current

address, representing that his former attorney did not provide the Court with the correct mailing

address and that he has not received any of the Court’s prior mailings, and providing the Court with

his current mailing address and phone number. The Court finds that Plaintiff has not displayed

contumacious conduct and dismissal under Rule 41 is not warranted. 

Accordingly, the Court hereby DENIES Defendants’ Verified Motion to Dismiss [DE 61].

The Court SETS this matter for an in-person status conference for inquiry on attorney

representation for September 6, 2016, at 9:30 a.m. (C.S.T.). Plaintiff Gary Harrison is ORDERED

to appear in person at the conference. Counsel for the other parties may participate telephonically

with notice to Courtroom Deputy Sue Brown-Nickerson at sue_brown@innd.uscourts.gov at least

48 hours in advance of the conference.

The Court DIRECTS the Clerk of Court to send an updated copy of the docket as well as

a copy of this Order to Plaintiff Gary Joe Harrison by first class and certified mail, return receipt

requested.

SO ORDERED this 16th day of August, 2016. 

/s Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

cc: Pro se Plaintiff Gary Joe Harrison

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