III. Conclusion

For the reasons discussed above, the Court concludes that Plaintiff should be sanctioned
in the amount of $125.00 and that this case should be dismissed with prejudice as a sanction for
her failure to appear for her deposition. In the alternative, the Court recommends that

Defendant's motion to dismiss for want of prosecution be granted.

Qik. Cobb

MARTIN C, ASHMAN
Dated: August 11, 2003. United States Magistrate Judge



”

date. Her failure to appear was willful and in bad faith. Lesser monetary sanctions have failed to
work as demonstrated by the ineffectiveness of the monetary sanction for her failure to appear for
the first deposition. For these reasons, we recommend that Plaintiff be sanctioned in the amount

of $125.00 for the court reporter's fees, and we recommend that Defendant's motion to dismiss as

sanctions for Plaintiff's failure to appear for her deposition be granted.

B. Motion to Dismiss for Want of Prosecution

Under Federal Rule of Civil Procedure 41, the court may dismiss an action for failure of
the plaintiff to prosecute or to comply with the rules or the court's orders. Dismissal fo a case "is
one of the tools available to district courts 'to achieve the orderly and expeditious disposition of
cases." Williams v. Chic. Bd. of Educ., 155 F.3d 853, 857 (7th Cir. 1998) (quoting Link v.
Wabash R.R. Co., 370 U.S. 626, 630 (1962)). However, because dismissal is such a harsh
sanction, it "should be used ‘only in extreme situations, when there is a clear record of delay or
contumacious conduct, or when other less drastic sanctions have proven unavailing."" Id.
(quoting Dunphy v. McKee, 134 F.3d 1297, 1299 (7th Cir. 1998) (citations omitted).

Plaintiff's actions cause us to reach the conclusion that this case should be dismissed for
failure to prosecute. Plaintiff has failed to appear for the last two scheduled court dates. She
twice failed to appear for her scheduled deposition, even when ordered to by this Court.
Monetary sanctions have failed to work. For these reasons, we recommend that Defendant's

motion to dismiss for want of prosecution be granted.



Written objections to any finding of fact, conclusion of law, or the recommendation for
disposition of this matter must be filed with the Honorable Elaine E. Bucklo within ten (10) days
after service of this Report and Recommendation. See Fed. R. Civ. P. 72(b). Failure to object
will constitute a waiver of objections on appeal.

Copies have been mailed to:
THERESA A. STEWART DEBORAH J. ALLEN, Esq.
P.O. Box 1238 Office of the Attorney General
Matteson, IL 60443 General Law Bureau
100 West Randolph Street
13th Floor

Chicago, IL 60601

Pro Se Plaintiff Attorney for Defendant



e_ Mioute OrdeygFormn (06/97)
~

United States District Court, Northern District of Illinois

Name of Assigned Judge i Sitting Judge if Other ‘i
or Magistrate Judge Elaine E. Bucklo than Assigned Judge Martin C. Ashman
CASE NUMBER 01 C 5520 DATE 8/11/2003
CASE Theresa A. Stewart vs. State of Illinois, et al.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.}
DOCKET ENTRY:
a) oO Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
@) oO Answer brief to motion due. . Reply to answer brief due. .
(4) Oo Ruling/Hearing on set for at
(5) gq Status hearing [held/continued to] [set for/re-set for] on set for at
(6) im Pretrial conference[held/continued to] [set for/re-set for] on set for at .
) Oo Trial{set for/re-set for] on at
(8) ia} [Bench/Jury trial] [Hearing] held/continued to at
(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) C)Local Rule 41.1 O)FRCP41(a)(1) [© FRCP41(a)(2).
ao) [Other docket entry] Report and recommendation recommending that defendant’s motion to
dismiss this action [76-1] as a sanction for plaintiff's failure to appear, for a second time, for her
deposition be granted is hereby entered of record. All matters relating to the referral of this action having
been resolved, the case is returned to the assigned judge.
ai) Of (For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

VW | Notices mailed by judge's staff.
Notified counsel by telephone.

Docketing to mail notices.
Mail AO 430 form.

LUND LaIYLSIA’S'N
oS | Copy to judge/megionatejudge. Wu3a79
courtroom 9S ind Hl onveo
Is deputy’s
initials 3

SNtt Maas tt
fa 's Office



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
THERESA A. STEWART, ) 00,
)
Plaintiff, ) Case No. 0165520 4), ChEDEn
) I
v. ) Judge Blaine E. Bucklo 2 2003
)
THE STATE OF ILLINOIS, ) Magistrate Judge
DEPARTMENT OF CORRECTIONS, ) Martin C. Ashman
STATEVILLE, )
)
Defendant. )

REPORT AND RECOMMENDATION

This case is before the Court on Defendant's motion to dismiss this action as a sanction
for Plaintiff's failure to appear, for a second time, for her deposition. Defendant also moves the
Court to dismiss this action for want of prosecution. For the reasons set forth below, the Court

finds that Defendant's motions should be granted.'

I. Background

Plaintiff Theresa Stewart brought suit against Defendant Illinois Department of
Corrections, alleging that she was sexually harassed while employed by the Defendant as a
correctional officer at Stateville Correctional Center. Plaintiff is proceeding pro se.

On May 28, 2003, Plaintiff failed to appear for a scheduled deposition and did not notify

Defendant's attorney that she was unable to appear for the deposition. On June 20, 2003, this

' This matter comes before this Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
Rule 72.1 for a report and recommendation.



:

Court sanctioned Plaintiff and ordered her to pay $120.00 for her failure to appear for the
deposition, as that was the amount of costs incurred by Defendant's attorneys for the court
reporter. We further ordered Plaintiff to appear at the offices of Defendant's attorney and give
her deposition on July 23, 2003. Defendant sent Plaintiff a notice of deposition for that same
date. Plaintiff again failed to appear.

On July 31, 2003, this Court held a status hearing. Plaintiff failed to appear. On August
5, 2003, due notice having been given, this Court heard argument on Defendant's motion to
dismiss as a sanction and motion to dismiss for failure to prosecute. Plaintiff failed to appear.
At the hearing, Defendant asked the Court for the unknown costs it incurred as court reporter's

fees for the July 23rd scheduled deposition.

II. Discussion

A. Motion to Dismiss as Sanctions

Under Federal Rule of Civil Procedure 37, the court may impose sanctions for abuse of
the discovery process. The sanctions imposed may include the dismissal of a case, but
"considering the severe and punitive nature of dismissal as a discovery sanction, a court must
have clear and convincing evidence of willfulness, bad faith or fault before dismissing a case."
Maynard v. Nygren, 332 F.3d 462, 468 (7th Cir. 2003). This standard has been met in this case.

Plaintiff twice failed to appear for her deposition. In the most recent instance, Plaintiff
was present in court (June 20, 2003, the Jast time she appeared) when we ordered her to appear
for her deposition on July 23, 2003. Plaintiff gave no indication on that date that she would be

unable to appear, nor did she subsequently inform Defendant that she would not appear on that

-2-