Case: 16-16331 Date Filed: 10/19/2017 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16331
Non-Argument Calendar
________________________
D.C. Docket No. 2:15-cv-00134-RWS
MAJOR FORTSON,
LAURA FORTSON,
Plaintiffs-Appellants,
versus
CITY OF BALDWIN,
JERRY NEACE,
in his official and individual capacities,
JOE DAVIDSON,
in his official and individual capacities, et al.
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 19, 2017)
Case: 16-16331 Date Filed: 10/19/2017 Page: 2 of 5
Before JORDAN, ROSENBAUM and ANDERSON, Circuit Judges.
PER CURIAM:
Major and Laura Fortson, two individuals proceeding pro se, appeal the
district court’s dismissal of their 42 U.S.C. § 1983 complaint as a sanction for
misconduct in discovery. 1 On appeal, the Fortsons argue that the district court was
without authority to dismiss their constitutional claims based on their failure to
comply with discovery requests and procedural rules. As discussed below, we
affirm the district court.
We review the district court’s decision to dismiss a case based on discovery
misconduct and failure to comply with court rules for an abuse of discretion.
Wouters v. Martin Cty., 9 F.3d 924, 929 (11th Cir. 1993); Zocaras v. Castro, 465
F.3d 479, 483 (11th Cir. 2006). “Discretion means the district court has a ‘range of
choice, and that its decision will not be disturbed as long as it stays within that
range and is not influenced by any mistake of law.’” Zocaras, 465 F.3d at 483
(quoting Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th
Cir. 2005)). We review the district court’s findings of fact for clear error. Id.
Pro se parties are subject to the Federal Rules of Civil Procedure and other
court rules. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). The Rules
1
The Fortsons also purport to appeal the district court’s dismissal of Defendant Robert A. Snead
based on judicial immunity. But they fail to include an argument regarding this issue in their
brief. The Fortsons have therefore abandoned their appeal of this issue. See Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam) (“[I]ssues not briefed on appeal by a
pro se litigant are deemed abandoned.”).
2
Case: 16-16331 Date Filed: 10/19/2017 Page: 3 of 5
provide for sanctions, including dismissal of an action, when a party fails to obey a
discovery order or serve its answers to interrogatories. Fed. R. Civ. P.
37(b)(2)(A)(v), (d)(1)(A)(ii), (d)(3). A district court may also dismiss an action
based on the plaintiff’s failure to comply with court rules. Fed. R. Civ. P. 41(b).
But “[d]ismissal of a case with prejudice is considered a sanction of last resort,
applicable only in extreme circumstances.” Zocaras, 465 F.3d at 483 (alteration in
original) (quoting Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985)).
Before dismissing an action, a district court must find that the plaintiff’s failure
was willful or in bad faith and that lesser sanctions would not have sufficed. See
Wouters, 9 F.3d at 933–34.
Here, the district court did not abuse its discretion by dismissing the
Fortsons’ claims with prejudice. First, the record supports the district court’s
finding that the Fortsons willfully failed to adequately respond to discovery. The
court warned the Fortsons that it could dismiss their complaint for failure to
comply with the Federal Rules of Civil Procedure and other court rules. And
Defendants’ counsel directed the Fortsons to Federal Rules of Civil Procedure 33,
34, and 37. Yet the Fortsons failed to respond to Defendants’ interrogatories and
requests for production beyond referring Defendants to their complaint and
attached exhibits. The court then specifically ordered the Fortsons to respond to
Defendants’ discovery requests and reminded them that failure to do so could
3
Case: 16-16331 Date Filed: 10/19/2017 Page: 4 of 5
result in dismissal of the action. The Fortsons again responded to many of the
requests by generally referring Defendants to their previous filings in this action.
The Fortsons do not offer an explanation for their failure to comply with the
discovery requests or the district court’s order. Rather, they appear to argue that
the district court abused its discretion by dismissing their action because of the
merits of their constitutional claims. But “the probable merit of a litigant’s case
does not preclude the imposition of” sanctions for a failure to comply with
discovery orders or court rules. Malautea v. Suzuki Motor Co., Ltd., 987 F.2d
1536, 1544 (11th Cir. 1993). Regardless of the Fortsons’ likelihood of success on
the merits, the district court was authorized to sanction the Fortsons for their
failure to cooperate with discovery and obey its orders. See Fed. R. Civ. P.
37(b)(2)(A)(v), (d)(1)(A)(ii), (d)(3).
Additionally, the record supports the district court’s finding that lesser
sanctions than dismissal would have been ineffective. The Fortsons’ filings in the
district court and this Court demonstrate their unwillingness to comply with
procedural rules. The district court concluded that Defendants were prejudiced by
the Fortsons’ noncompliance. Given the Fortsons’ failure to obey the district
court’s multiple warnings, the district court did not abuse its discretion by failing
to impose lesser sanctions before dismissing the action. Malautea, 987 F.2d at 1544
4
Case: 16-16331 Date Filed: 10/19/2017 Page: 5 of 5
(recognizing that Rule 37 does not require “the vain gesture” of imposing
ineffective lesser sanctions before dismissing an action). Accordingly, we affirm.
AFFIRMED.
5