# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 29, 2018 *

Decided August 17, 2018

Before

DIANE P. WOOD, Chief Judge

MICHAEL S. KANNE, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 17

‐ 3138

LEIGH GLASS,

Plaintiff

‐ Appellant

,

v

.

NANCY A. BERRYHILL,

Acting Commissioner of Social Security,

Defendant

‐ Appellee

. Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division.

No. 1:17

‐ cv

‐ 02239

Sharon Johnson Coleman,

J udge

.

O R D E R

On judicial review of a decision to discontinue her Supplemental Security

Income payments, Leigh Glass alleged that Social Security employees conspired to end

her benefits as retaliation for an alleged personal dispute with one of them. Litigation of

her claim was short

‐ lived and beset by communication problems. The district court

* We have agreed to decide this 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 F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 17

‐ 3138 Page 2

dismissed Glass’s suit for failure to prosecute, but because the district judge did not

consider essential factors before imposing that sanction, we vacate the judgment.

From the beginning, Glass, representing herself, attempted to convey to the court

that she was facing health problems and was confused about court proceedings. Shortly

before the first status hearing, Glass filed what she labeled “ ex parte applications” that

were effectively status reports in which she reported that she was “too disabled and

distraught to be active on this case” or to attend any court hearing. She also stated that

she had not been timely receiving court filings. Glass asked for a continuance of an

already

‐ canceled motion hearing date but did not specifically request a continuance of

the upcoming status hearing date.

Glass did not appear at that hearing. The district judge sua sponte struck the

ex parte filings and—for unknown reasons—the application to proceed in forma pauperis

that Glass had filed with her complaint. The judge reset the hearing date and warned

Glass that if she did not appear again, the case could be dismissed for lack of

prosecution. Glass did appear at the next status hearing, after which the district judge

set another status hearing and ordered Glass to “update” her IFP petition. The judge

told Glass that she was required either to appear in person or to be prepared to explain

her absence.

Two days before the next status hearing, Glass petitioned this court for a writ of

mandamus, alleging that the district court refused to rule on her motion to proceed in

forma pauperis and struck or “disappeared” all her filings. Glass also argued that the

district court was obliged to allow her to appear telephonically because of her health

and said that her doctor had ordered her not to appear in court. We denied her petition.

Glass then failed to appear in the district court for the second time. The district

judge noted that staff made several attempts to call Glass but received no answer. The

judge granted the government’s oral motion to dismiss the case for lack of prosecution.

Three days later, apparently unaware of the dismissal, Glass moved for default

judgment, arguing that the time for the government’s answer had passed (it had,

according to the judge’s scheduling order). The district judge then entered an order

explaining that the case had been dismissed because of Glass’s repeated failure to

appear and failure to comply with the court’s order to update her IFP petition. The

judge also noted that chambers had received an email from the plaintiff but emphasized

that the court’s standing order provides a process for requesting to appearNo. 17

‐ 3138 Page 3

telephonically—an email to the courtroom deputy—and Glass had “made no []

attempt” to follow it. Glass appealed.

On appeal Glass argues that the district judge abused her discretion in

dismissing the case. First, Glass contends, she was not warned sufficiently about the

possibility of dismissal because the district court’s most recent order stated only that

she must be prepared to advise the court why she did not appear. Moreover, Glass

maintains, she did advise the court in her struck filings, and in other communications

that she says never appeared on the docket, that she could not appear for health

reasons. (It seems that some, perhaps all, of these communications were docketed, but

that information is restricted to the court.) And, Glass explains, she did not mean to

disobey any court orders. Rather, she says that she misunderstood the meaning of the

court’s order to “update” her IFP petition. She did not know she was expected to file it

again; she thought it meant that if something changed, then she should update the

court. Finally, Glass contends that dismissal is an unduly harsh sanction because, she

argues, her case had merit and she now faces a statute

‐ of

‐ limitations bar.

We conclude that the district judge dismissed the case too hastily. Before

imposing the “extraordinarily harsh” sanction of dismissal, district judges should

consider the frequency and magnitude of the plaintiff’s noncompliance with deadlines,

the effect of noncompliance on the court’s calendar, the prejudice to defendants, the

merits of the suit, the efficacy of other sanctions, and “the consequences of dismissal for

the social objectives that the litigation represents.” Kasalo v. Harris & Harris, Ltd.,

656 F.3d 557, 561 (7th Cir. 2011); see also Sroga v. Huberman

, 722 F.3d 980, 982 (7th Cir.

2013); Kruger v. Apfel

, 214 F.3d 784, 787 (7th Cir. 2000). Neither the transcript of the

hearing at which the judge dismissed the case nor the judge’s later orders show any

consideration of these factors, and a failure to consider “essential factor[s]” can

constitute an abuse of discretion. Sroga

, 722 F.3d at 982; see also Kruger, 214 F.3d at 786.

The district judge offered no reason why the factors that appear to weigh against

dismissal did not persuade her. Glass’s behavior does not suggest willful delay or

noncompliance. Rather, it seems that Glass, when she was aware of a hearing, did

attempt to request telephonic appearance and to communicate that she could not

appear. The district judge’s final order hints that chambers had received an email to this

effect from Glass, and Glass’s mandamus petition, of which the district judge had

notice, also makes clear her alleged illness and hospitalization and her wish to appear

telephonically. True, even pro se litigants must follow court rules, see McInnis v. Duncan

,

697 F.3d 661, 665 (7th Cir. 2012). And the district judge found that Glass did not followNo. 17

‐ 3138 Page 4

proper procedure for requesting telephonic appearance. We note, however, that the

judge’s standing order requires litigants to request telephonic hearings by email and so

Glass’s misdirected email does not necessarily demonstrate “no attempt” to comply.

This kind of confusion does not suggest “a clear record of delay or contumacious

conduct.” Kasalo, 656 F.3d at 561 (quoting Gabriel v. Hamlin, 514 F.3d 734, 736 (7th Cir.

2008)). And the district judge did not address Glass’s stated reason for failing to

appear—her health—which, if true, suggests that Glass did not intentionally delay or

disobey orders.

Given that Glass’s behavior seems to stem from confusion, health problems, or

both, and not willfulness, the judge also should have considered whether lesser

sanctions would be effective. See Bell v. Kay

, 847 F.3d 866, 868 (7th Cir. 2017) (dismissal

was abuse of discretion when, among other factors, judge did not address plaintiff’s

explanation for failure to comply with court order and did not consider whether other

options would suffice); Sroga

, 722 F.3d at 983 (vacating dismissal when judge did not

consider “essential factors” and did not offer any reason to disbelieve plaintiff’s

explanation which, if true, did not imply willful delay). Moreover, Glass is not wrong to

note that the judge’s second “warning” did not threaten or mention dismissal; rather, it

demanded that Glass explain her absence if she did not appear. (The previous warning

stated only that Glass had to appear for the next hearing, which she did.) The ambiguity

of the order further detracts from the likelihood of insubordination.

It is also not clear that the two missed hearings greatly prejudiced the defendants

or disrupted the district court’s calendar. Nothing could move forward until Glass

resolved her IFP status, see Ford v. Johnson

, 362 F.3d 395, 398 (7th Cir. 2004) (complaint is

not considered filed, and thus answer not due, until fee status resolved), but as her

motion for default judgment demonstrates, she believed, incorrectly, that the appeal

was proceeding normally. We respect the judge’s authority to manage her own docket,

and we recognize the crowded caseloads of the agency’s attorneys, but neither the

judge nor the lawyers explained any specific prejudice. If we knew the purpose of the

status hearings in an appeal decided on a closed administrative record and the briefs,

see N.D. Ill. Local Rule 16.4, we might have more insight into the district judge’s

thinking. But inconvenience alone is not enough to show the kind of prejudice that

warrants the ultimate sanction. See Kasalo, 656 F.3d at 561.

Finally, it is difficult to say at such an early stage whether Glass’s suit had merit.

But dismissing it as a sanction frustrates Congress’s intent to provide judicial review of

the denial of Social Security benefits.No. 17

‐ 3138 Page 5

Had the district judge weighed these factors and explained her reasoning, we

might well have found that she appropriately exercised her discretion. But as it is, we

must VACATE the judgment and REMAND for further proceedings. On remand,

Glass’s fee status should be resolved swiftly.