Marquise Hollerway v. Robert Spiegel

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 16, 2024*
Decided January 25, 2024
Before
DIANE S. SYKES, Chief Judge
MICHAEL B. BRENNAN, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 23-1137
MARQUISE HOLLERWAY,
Plaintiff-Appellant,
v.
ROBERT SPIEGEL, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 18 C 5360
Franklin U. Valderrama,
Judge.
O R D E R
Marquise Hollerway appeals the dismissal of his suit for want of prosecution
after he missed status hearings, did not respond to discovery requests, and failed to
appear for his deposition. The district judge did not abuse his discretion in dismissing
* We have 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-1137 Page 2
the case after permissibly finding that Hollerway had ignored his obligations; thus, we
affirm.
Hollerway sued Robert Spiegel and Mark Zawila, officers for the Chicago Police
Department, alleging that they arrested him in violation of his rights under the Fourth
Amendment. See 42 U.S.C. § 1983. Because Hollerway had a related criminal case
pending in state court, the magistrate judge stayed this case until that matter concluded,
and he lifted the stay in January 2022. At a status hearing in March 2022—which
Hollerway did not attend—the magistrate judge scheduled another status hearing for
June 9, set a discovery deadline of August 31, and in a written order told Hollerway
about resources available to help him with discovery. A few weeks later, on April 5,
Hollerway attended a hearing on the defendants’ motion for a protective order, but for
three months after this hearing neither the defendants nor the court heard from
Hollerway.
During those three months, defense counsel sent Hollerway discovery requests
(responses due on May 31), a notice of deposition (set for June 22), and two emails
reminding him of the deposition. He did not respond to the requests, attend the
deposition, or otherwise contact defense counsel. He also missed the status hearing on
June 9. Defendants moved to compel Hollerway to answer the written discovery and to
sit for his deposition. At a hearing on this motion—which Hollerway also missed—the
magistrate judge ordered Hollerway to respond to the defendants’ first set of
interrogatories and to arrange a date for his deposition by July 27. The magistrate judge
warned that, if Hollerway disobeyed the order, he intended to recommend the case be
dismissed for want of prosecution. Hollerway did not comply, and the magistrate judge
recommended dismissal.
The district judge gave the parties 14 days to object to the recommendation of
dismissal. See F ED. R. C IV. P. 72(b)(2). Hollerway did not object. Rather, within the
14-day period he filed an unattested “Motion for Attorney Representation.” In it, he
sought a court-recruited attorney, stating that he is homeless and jobless, that his cell
phone was “destroyed,” and that he lost access to his mailbox. And he offered to come
to the court weekly to check the docket. On December 15, the district judge adopted the
magistrate judge’s recommendation and dismissed the case for want of prosecution.
Hollerway filed two documents on January 13, 2023 (29 days after the entry of
judgment): a notice of appeal and a motion to vacate the judgment. In the motion, he
repeated that as of the previous August he did not have a cell phone or mailing address,

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No. 23-1137 Page 3
but he acquired both since then, he checked the court’s docket weekly, and he did
everything “within his power” to litigate the case. The district judge construed the
motion as one under Rule 59(e) of the Federal Rules of Civil Procedure and denied it.
He explained that Hollerway’s asserted problems (lack of cellphone and mailbox) did
not adequately excuse his failure to communicate with the court during the months of
his apparent abandonment of the case.
On appeal, Hollerway urges that the district court should not have dismissed his
case. We first observe that our review is limited to the dismissal order. Hollerway filed
his notice of appeal within 30 days of this order; thus, that appeal is timely. See F ED. R.
A PP . P. 4(a)(1). But Hollerway moved to vacate the dismissal one day after the 28-day
window set by Rule 59(e) of the Federal Rules of Civil Procedure (a limit the court
cannot extend, even by one day, see F ED. R. CIV. P. 6(b)(2)). Although the district judge
treated that motion under Rule 59(e), it was not a timely Rule 59(e) motion; therefore we
must treat it under Rule 60(b). See Banks v. Chicago Bd. of Educ., 750 F.3d 663, 666–67
(7th Cir. 2014). And because Hollerway did not timely file another notice of appeal (or
an equivalent filing, see Nartey v. Franciscan Health Hosp., 2 F.4th 1020, 1024 (7th Cir.
2021)), after the district judge denied his post-judgment motion, we may not review that
denial. See Krivak v. Home Depot U.S.A., Inc., 2 F.4th 601, 604 (7th Cir. 2021)
(quoting Bowles v. Russell, 551 U.S. 205, 214 (2007)).
Regarding the dismissal, we review for abuse of discretion a district judge’s
dismissal for failure to prosecute, and we reverse only if no reasonable person could
agree with the decision. Moffitt v. Illinois State Bd. of Educ., 236 F.3d 868, 872–73 (7th Cir.
2001). Further, when a district judge receives a recommendation from a magistrate
judge to dismiss a case, the district judge decides de novo any portion to which the
dissatisfied party has “properly objected,” F ED. R. C IV. P. 72(b)(3), and need only assess
for clear error any unobjected-to findings, United States v. Gibson, 958 F.3d 661, 662
(7th Cir. 2020). A complete failure to object can waive in our court any appellate review
of the recommendation. Id.
Under these standards, Hollerway’s appellate challenge fails. First, he never
properly objected to the recommendation to dismiss. His only timely response was a
request to recruit an attorney for him. And that filing did not even mention the

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recommendation, much less object to it.1 We may therefore deem waived any challenge
in this court to the recommendation. Id.; Johnson v. Zema Systems Corp., 170 F.3d 734, 739
(7th Cir. 1999). But even when viewed through the lens of clear error, the
recommendation to dismiss based on a finding of case abandonment is sound. The
record amply shows that, when the magistrate judge recommended dismissal,
Hollerway had failed to prosecute his case because he inexplicably missed three court
hearings and—despite a court order—ignored his discovery duties. Such disregard of
his case justified its dismissal. See F ED. R. C IV. P. 41(b); Salata v. Weyerhaeuser Co.,
757 F.3d 695, 700 (7th Cir. 2014) (dismissal justified where plaintiff missed multiple
status hearings and did not comply with discovery obligations).
We recognize that Hollerway asserted in his motion to recruit counsel that, after
his cell phone was “destroyed” and mailbox became inaccessible, he was unable to
receive word from the defendants and the court. But these assertions did not compel the
district judge to exercise his discretion, see Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d
752, 760–61 (7th Cir. 2009), to excuse Hollerway’s apparent abandonment of his case
and refuse to dismiss it. For one thing, Hollerway did not specify when those events
occurred in relation to his string of missed deadlines and obligations and whether those
events caused his failures. For another, he did not attest under the penalties of perjury
to the truth of his assertions. Finally, he acknowledged that he could come to court
weekly to check on the docket. Yet never at any time before the magistrate judge
recommended dismissal did he come to the court to tell it about his communication
difficulties. Given Hollerway’s failure to communicate with the court in a way that he
admits was available to him, the district judge was not required to reject the magistrate
judge’s recommendation to dismiss the case.
AFFIRMED
1 In his discretion, the district judge could have generously construed
Hollerway’s motion for representation as an objection to the dismissal recommendation.
See Otis v. Demarasse, 886 F.3d 639, 644 (7th Cir. 2018) (describing how filings by pro se
litigants may be liberally construed). But, for the reasons we explain in this order, even
a liberal reading of Hollerway’s motion as an objection would not have required the
district judge to exercise his discretion to reject the magistrate judge’s recommendation.

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