NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 10, 2010
Decided December 16, 2010
Before
RICHARD D. CUDAHY, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 10‐2366
VICTOR WATKINS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 08‐cv‐070‐DRH
JAMES NIELSEN, David R. Herndon,
Defendant‐Appellee. Chief Judge.
O R D E R
Victor Watkins sued a prison doctor under 42 U.S.C. § 1983 while he was
incarcerated in Illinois. The district court recruited counsel to represent Watkins but
eventually dismissed the suit as a sanction for noncompliance with discovery and
scheduling orders. Because the district court did not abuse its discretion, we affirm the
judgment.
Watkins filed suit pro se, claiming that three prison employees violated the Eighth
Amendment by failing to treat his schizophrenia. Watkins alleged that the defendants
knew he had been diagnosed with schizophrenia before his incarceration, and yet they
refused to provide him with antipsychotic medication. His untreated schizophrenia, he
said, caused him to hear voices while in segregation for six months. The district court
No. 10‐2366 Page 2
dismissed two of the defendants at screening, see 28 U.S.C. § 1915A, but allowed the suit to
proceed against Dr. James Nielsen, a physician at the prison.
Watkins, proceeding in forma pauperis, then asked the district court to recruit a
lawyer to assist him. Watkins explained that he needed help prosecuting his case due to his
mental impairment. The district court agreed and enlisted a lawyer to represent Watkins.
Counsel entered her appearance on September 17, 2008, and continues to represent Watkins
on appeal.
In November 2008 a magistrate judge set a discovery deadline of June 19, 2009. In
April 2009, however, plaintiff’s counsel filed an unopposed motion asking to push back the
discovery deadline because until then she had not heard from Watkins since his release
from prison in February. In her motion counsel explained that Watkins had resumed
communication but she needed more time to complete discovery. After a hearing the
magistrate judge extended the deadline five months until November 19, 2009.
Shortly before that date, on November 16, 2009, the magistrate judge conducted a
telephonic conference and reviewed the status of discovery, which had stalled. The court
instructed Nielsen to tender his discovery requests and gave Watkins 30 days to comply.
Nielsen served interrogatories and a request for production of records, including medical
records, but received nothing from Watkins. Finally, in late January 2010, Nielsen filed a
motion under Federal Rule of Civil Procedure 37 to compel. The magistrate judge granted
the motion on January 27 and directed Watkins to respond within 10 days, warning him
that failing to do so could result in dismissal of his case.
Nielsen did not receive any records from Watkins. He did receive a response to his
interrogatories and request for production. Nielsen conveyed to the magistrate judge,
however, that Watkins’s disclosures were incomplete, and at a status conference on
February 19, 2010, the court told Nielsen to identify the deficiencies and explain how his
ability to defend the suit had been prejudiced. On March 3, Nielsen faxed plaintiff’s counsel
a letter explaining the deficiencies. The letter indicates that the two had previously
discussed why Nielsen believed Watkins’s responses to discovery failed to comply with the
court’s order and informed plaintiff’s counsel that Nielsen intended to file a motion to
dismiss. Two days later Nielsen filed a motion to dismiss based on Rule 37.
Rather than cure the discovery deficiencies, Watkins filed a motion seeking more
time to conduct discovery. The magistrate judge denied this motion, reasoning that
Watkins had not established good cause for missing the discovery deadline. In a motion for
reconsideration, Watkins contended that his schizophrenia had prevented him from
maintaining contact with his lawyer and contributed to his failure to produce timely,
No. 10‐2366 Page 3
adequate discovery. The district court referred the motion to reconsider to the magistrate
judge, who denied it.
In his motion to dismiss, Nielsen had detailed the obvious shortcomings in
Watkins’s discovery responses. For example, in response to a general inquiry about his
medical treatment since 2000, Watkins answered that he had been hospitalized about
150 times but offered no details about when or where. Watkins responded to a specific
inquiry about treatment for injuries related to his lawsuit by stating that he had been
hospitalized several times in St. Joseph, Illinois, but Watkins did not provide dates or
identify any hospital or name any treating physician. Other answers were similarly
nonresponsive. And Watkins disclosed no information when asked to state the date, time,
and location of the incident underlying his complaint. Watkins did not explain or defend
these answers in responding to Nielsen’s motion to dismiss.
The magistrate judge recommended that the district court grant Nielsen’s motion
and dismiss Watkins’s complaint. The court noted that Watkins had gotten the discovery
deadline extended and still failed to respond to discovery requests in a timely manner. And
when he did respond, the court continued, his answers were incomplete and evasive, and
he produced no documents. The court also cited Watkins’s failure to personally attend the
final pretrial conference despite a specific order to appear. The magistrate judge concluded
that sanctions were appropriate under Rule 37(b)(2) for failure to comply with the discovery
order and under Federal Rule of Civil Procedure 16(f) for failure to comply with the
scheduling order. Although the court weighed lesser sanctions, such as fining Watkins or
barring him from introducing any undisclosed medical evidence, the court concluded that
neither alternative was sound because Watkins could not afford a fine and excluding the
medical evidence would have the same practical effect as dismissal.
Watkins filed timely objections to the magistrate judge’s recommendation, insisting
that his schizophrenia had prevented him from prosecuting his case. Plaintiff’s counsel
assured the court that finally Watkins was cooperating with her and thus the lawsuit should
be allowed to proceed. The district court adopted the magistrate’s recommendation and
addressed Watkins’s objections. The court agreed that the discovery responses were
deficient and found that Watkins had willfully violated the magistrate judge’s orders. On
May 11, 2010, the court dismissed the case with prejudice, basing its final decision only on
Rule 37, not on Rule 16.
Rule 37(b) allows dismissal of an action as a sanction if a party “fails to obey an
order to provide or permit discovery,” FED. R. CIV. P. 37(b)(2)(A)(v), and this court reviews
discovery sanctions for abuse of discretion, In re Thomas Consol. Indus., Inc., 456 F.3d 719, 724
(7th Cir. 2006). A district court may dismiss a case as a sanction for discovery abuse if it
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finds that the party’s actions displayed willfulness, bad faith, or fault, and if dismissal
would be a proportionate response to the circumstances. Collins v. Illinois, 554 F.3d 693, 696
(7th Cir. 2009); Melendez v. Ill. Bell Tel. Co., 79 F.3d 661, 672 (7th Cir. 1996).
Watkins’s challenge to the dismissal is vague. His brief does not make clear whether
he argues that the district court erred in finding that his conduct was willful, or whether
instead he contends only that the sanction of dismissal was too harsh. What is plain,
however, is that Watkins does not disagree that his discovery responses were both late and
deficient, or that he failed to appear in court when his attendance was required.
We have not resolved definitively whether a finding of willfulness must be premised
on clear and convincing evidence or simply a preponderance. In Maynard v. Nygren, 332
F.3d 462, 468 (7th Cir. 2003), we held that the higher standard governs dismissals under
Rule 37, but later in Wade v. Soo Line R.R. Corp., 500 F.3d 559, 564 (7th Cir. 2007), we
questioned the correctness of that conclusion. In this case the district court found a willful
violation based on Watkins’s failure to abide by procedural rules and the magistrate judge’s
discovery orders. That finding is supported by the evidence even under the higher
standard.
A brief glance at Watkins’s interrogatory responses is enough to confirm that they
are deficient, and at oral argument plaintiff’s counsel conceded that Watkins’s delays in
providing information had led to the incomplete answers. We upheld a finding of
willfulness on similar facts in Hindmon v. National‐Ben Franklin Life Insurance Corporation,
where the plaintiff had “failed to properly answer defendant’s Interrogatories, and failed to
respond to defendant’s Request for Production within the time limit set by the district
court.” 677 F.2d 617, 620 (7th Cir. 1982).
Watkins also failed to produce medical records that were in his control. Under
Federal Rule of Civil Procedure 26(a)(1)(A)(ii), he should have automatically provided his
medical records which, according to the final pretrial order, he intended to use to support
his Eight Amendment claim. See Fischer v. Cingular Wireless, LLC, 446 F.3d 663, 664‐65 (7th
Cir. 2006); Williams v. Chicago Bd. of Educ., 155 F.3d 853, 855 (7th Cir. 1998). After failing to
produce them in compliance with Rule 26, he then violated two court orders requiring that
he turn over the documents: the order giving him 30 days after Nielsen’s request for
production and the second order giving him 10 additional days.
Incomplete or evasive responses to interrogatories can lead to dismissal of an action
under Rule 37(b). See Aura Lamp & Lighting Inc. v. Int’l Trading Corp., 325 F.3d 903, 909 (7th
Cir. 2003); Dotson v. Bravo, 321 F.3d 663, 667 (7th Cir. 2003); Roland v. Salem Contract Carriers,
811 F.2d 1175, 1179‐80 (7th Cir. 1987). In Roland we upheld a district court’s dismissal under
No. 10‐2366 Page 5
Rule 37 after the plaintiff missed the discovery deadline and then ignored the court’s next
order to respond. Like the appellant in Roland, Watkins had opportunities to cure the
shortcomings. From the time of the February 19, 2010, status conference until the dismissal
in May 2010, Watkins knew that his discovery responses were woefully deficient, but he did
not try to cure the discovery violation.
Watkins contends that his failure to make proper responses did not impact Nielsen’s
ability to defend the case. Although we concluded that dismissal was too harsh in a case
where a minor error was quickly remedied, see Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir.
2000), Watkins’s discovery failings did harm Nielsen. Watkins did not even disclose the
basic facts underlying his claim, and after 19 months of discovery, Nielsen still did not have
essential information about Watkins’s lawsuit. Without dates and names of hospitals and
physicians, Nielsen could not be expected to scour facilities across Illinois for Watkins’s
medical records.
Watkins argues that his mental illness was not considered in deciding whether
dismissal was appropriate. But the magistrate judge correctly found that Watkins’s mental
illness does not explain his failure to communicate or provide unresponsive disclosures. See
Hunt v. City of Minneapolis, Minn., 203 F.3d 524, 528 (8th Cir. 2000) (“Although Hunt’s PTSD
may have affected his behavior at the deposition and medical examination, it clearly was
not responsible for the vast majority of the delays caused by Hunt and his attorney.”).
Finally, Watkins contends that the district court did not consider other sanctions
before deciding that dismissal was appropriate. We disagree. The district court did
consider lesser sanctions; it contemplated both a monetary penalty and refusing to admit
the medical records. The court thus discharged whatever obligation it might have had to
consider lesser sanctions. Compare Maynard, 332 F.3d at 468 (“[A] court can apply the
sanction of dismissal for Rule 37 violations with a finding of willfulness, bad faith or fault,
as long as it first considers and explains why lesser sanctions would be inappropriate.”),
with Dotson, 321 F.3d at 667 (“[I]t is axiomatic that the appropriateness of lesser sanctions
need not be explored if the circumstances justify imposition of the ultimate
penalty—dismissal with prejudice.”). At all events, even the other sanctions contemplated
by Rule 37(b)(2)—staying further proceedings or holding Watkins in contempt—would
have been fruitless in this situation.
AFFIRMED.
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Cudahy, Circuit Judge, concurring in the judgment:
This case presents an unusual and difficult situation, because the plaintiff is
allegedly afflicted with schizophrenia, and Judge Herndon apparently sought to
accommodate this circumstance by the appointment of an experienced civil rights litigator
as plaintiff’s counsel. This effort by the presiding judge was apparently unrewarded, since
there is little evidence that appointed counsel pursued an active and effective role in
correcting the plaintiff’s deficiencies. Unfortunately, this is not an area where the record
furnishes much enlightenment, since the district court did not consider or comment on the
appointed attorney’s possible contribution to the discovery violations. We do know,
however, that Watkins’ interrogatory responses reveal that they were incomplete and
illegible and that Watkins and his attorney failed to produce medical records that the
attorney apparently possessed since June, 2009. These circumstances suggest that the
attorney did not pursue the active course that the district court might have hoped for in her
appointment.
These circumstances, even if somewhat dimly perceived, do not affect the ultimate
outcome, since the client is generally responsible for the possible failings of his attorney. See
Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 396 (1993); Salgado v.
General Motors Corp., 150 F.3d 735, 741 (7th Circ. 1998); Roland v. Salem Contract Carriers,
811 F.2d 175, 1180 (7th Circ. 1987); CF. Tango Music, LLC v. Deadquick Music, 348 F.2d 294,
247‐48 (7th Cir. 2003).