Hicks v. Feeney

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

This case involves the dismissal of a plaintiff’s action for failure to comply with a district court’s discovery order. The sanction is harsh. Nevertheless, considering appellant’s willful refusal to afford ap-pellee discovery relevant, at the least, to the undecided issue of appropriate relief, the district court did not abuse its discretion. We will therefore affirm.

On November 18, 1982 the Family Court of the State of Delaware found plaintiff Roy Hicks (Hicks) guilty of criminal contempt. The court sentenced Hicks to thirty days in jail, but suspended the sentence in favor of a one year probation. As a condition of the probation, Hicks was sent to the Delaware State Hospital (DSH) for a seventy-two-hour evaluation, and for continued hospitalization, if recommended by DSH, “as may be permitted by law, unless sooner discharged according to law.” Hicks was *154not released until January 12, 1983, fifty-four days after his admission.1

Hicks brought a 42 U.S.C.A. § 1983 (West 1981) civil rights action in district court against Robert Feeney (Feeney), director of DSH. Hicks sought declaratory and injunctive relief against Feeney in his official capacity and compensatory damages against him as an individual. Both parties moved for summary judgment. The district court held that although Hicks’s liberty interest was violated by his confinement at DSH, adequate post-deprivation remedies existed to remedy it. Therefore, his right to procedural due process was not violated. Hicks v. Feeney, 596 F.Supp. 1504, 1512 (D.Del.1984) (Hicks I), vacated, 770 F.2d 375 (3d Cir.1985). The district court also found that Hicks’s substantive due process rights were not violated. Id. at 1513. Finally, the district court found that because Hicks’s rights were not “clearly established” at the time of the violation, Feeney was entitled to qualified immunity. Id. at 1515.

On appeal, this Court held that the district court erred in applying the post-deprivation remedy exception to Section 1983 violations of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Hicks II, 770 F.2d at 379. We held DSH’s commitment procedures were an established state procedure rather than the random and unauthorized act of a state officer. Id. at 378-79. Under Parratt, an established state procedure requires a pre-deprivation hearing. We also considered Feeney’s claim of qualified immunity and found that the district court misapplied the factual correspondence standard of People of Three Mile Island v. Nuclear Regular tory Comm’rs, 747 F.2d 139, 144 (3d Cir.1984). Hicks II, 770 F.2d at 379-80. We therefore vacated the district court’s order granting qualified immunity to Feeney and instructed the court to “focus on whether it was clearly established that Hicks could be involuntarily confined at DSH after the initial 72-hour period ordered by the family court judge.” Id. at 380. If it were clearly established that this confinement violated Hicks’s constitutional rights, then Feeney does not have qualified immunity. Id. We also instructed the district court to consider whether Delaware’s Involuntary Commitment Act2 creates a liberty interest that could form the basis of a Section 1983 action. Id. at 380 n. 4.

On remand, Hicks moved for summary judgment. The district court entered an order setting a briefing schedule and allowing Feeney to take further discovery.

Hicks was deposed on January 28, 1986. After approximately forty minutes, he refused to answer any more questions.3 After a one-hour recess, he did not return to the deposition. The deposition was rescheduled for February 14, 1986. Hicks failed to appear. Feeney filed a Motion to Compel Deposition of Plaintiff. While that motion was pending, Feeney rescheduled the deposition to April 8, 1986. Hicks did not appear. On July 9, 1986 Joseph Bernstein, Esq., counsel for Hicks, sent the district judge a letter explaining his client’s position. He stated that he had been in contact with Hicks at least five times, both before and after the various deposition dates. Hicks told Bernstein that “he did not want to discuss what he believed to be extremely private matters concerning what happened to him while he was confined at the Delaware State Hospital.” App. at A-54. Bernstein informed Hicks of the possibility of the imposition of sanctions for failing to appear at the deposition. Hicks replied that “he valued his privacy concerning these matters more than any compensatory damages that the court might award” and that he would not appear at any future depositions. Id.

The district court ordered Hicks to appear at a deposition on July 29,1986 and to *155pay costs for the previous depositions. The court warned that additional sanctions, including an outright dismissal, would be imposed if Hicks failed to appear. Hicks did not appear. In his Memorandum in Opposition to Defendant’s Motion for Sanctions, Hicks recognized that his refusal to be deposed resulted in substantial prejudice to Feeney and was willing to waive his “actual” injury claims. App. at A-80. However, Hicks continued to press for presumed and punitive damages. App. at A-80-81 & n. 7. Hicks suggested that even a $1.00 award of nominal damages would be an alternative sanction to an outright dismissal. App. at A-80 n. 6. Nevertheless, the district court dismissed the case. Hicks appeals from the district court’s final order. We have jurisdiction under 28 U.S. C.A. § 1291 (West Supp.1987).

Hicks first argues that the district court exceeded its power under Federal Rules of Civil Procedure 37(b)(2) in dismissing the case for failing to comply with discovery orders. The court clearly has the power to dismiss the case as a sanction against a party who fails to obey an order regarding discovery. Fed.R.Civ.P. 37(b)(2)(C). The sanction must be specifically related to the particular claim at issue in the discovery order. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707-08, 102 S.Ct. 2099, 2107, 72 L.Ed.2d 492 (1982). The trial court has discretion over which sanctions to impose and “may make such orders in regard to the failure as are just.” Fed. R.Civ.P. 37(b)(2).

Hicks argues, however, that the district court was limited in the sanctions it could apply because of our opinion in Hicks II. He claims Hicks II established Fee-ney’s liability, leaving only the issue of monetary damages to be determined through discovery and trial. Reviewing Hicks II, we do not find such a holding. In Hicks II we held that the district court erred in applying the post-deprivation remedy exception to Section 1983 violations of Parratt v. Taylor, supra. This holding was based on a finding that DSH’s court commitment procedure was not a “random and unauthorized act” but “an established state procedure that required a pre-deprivation hearing.” Hicks II, 770 F.2d at 378-79. We made no findings as to whether a hearing took place and if not, why not. Certainly Hicks might have been able to shed light on why he did not have a hearing and why he was placed in a maximum security building. Feeney asked Hicks for this type of information during his deposition. App. at A-15-16, 32-34. Feeney contends that, without deposing Hicks,, he cannot fully prepare a defense as to the issues of (1) whether his failure to follow constitutionally required procedure caused Hicks alleged damages; (2) whether Hicks would have remained at DSH even if the procedures had been followed; and (3) Hicks’s actual damages. App. at A-72. We cannot summarily deny Feeney the opportunity to establish a defense.4

Hicks’s second argument on appeal is that the district court abused its discretion in dismissing the case contrary to our *156guidelines in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir.1984). “In determining whether a District Court has abused its discretion in dismissing a complaint ... we will be guided by the manner in which the court balanced the Poulis factors and whether the record supports its findings.” Ali v. Sims, 788 F.2d 954, 957 (3d Cir.1986).

In Poulis we set out the following factors for a district court to balance in deciding whether to dismiss a case:

(1) The extent of the party’s personal responsibility, (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.

Poulis, 747 F.2d at 868 (emphasis in original). Not all of these factors need be met for a district court to find dismissal is warranted. A Rule 37(b)(2)(C) dismissal is a serious sanction. In certain cases, it is a necessary tool to punish parties who fail to comply with the discovery process and to deter future abuses. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976); Al Barnett & Son, Inc. v. Outboard Marine Corp., 611 F.2d 32, 35-36 (3d Cir.1979). This is such a case. See Kabbe v. Rotan Mosle, Inc., 752 F.2d 1083 (5th Cir.1985) (per curiam) (repeated willful failure of plaintiff to attend deposition warrants dismissal). Mindful of the fact that dismissal is a sanction of last resort, Poulis, 747 F.2d at 868, we will review the district court’s balancing of the Poulis factors for abuse of discretion.

In this case Hicks failed to attend depositions, one in violation of the district court’s order. Hicks attended approximately forty minutes of his deposition. After a brief recess, he failed to return to counsel’s office. He failed to appear for two rescheduled depositions of which he had notice. He informed his attorney that he did not want to discuss “what he believed to be extremely private matters concerning what happened to him while he was confined at the Delaware State Hospital.” App. at A-54. Hicks stated that he would not appear at any further depositions because “he valued his privacy concerning these matters more than any compensatory damages that the court might award.” Id. On July 16, 1986 the district court ordered Hicks to appear at a deposition on July 29, 1986, warning that failure to do so would result in sanctions under Rule 37, including dismissal of the case.

Given these facts, we cannot find that the district court abused its discretion in dismissing the case. A remand would tell the district court to ignore Hicks’s willful conduct and simply weigh the relative prejudices to the parties. Hicks was personally responsible for failing to attend the depositions. As evidenced by his communications with his attorney, his conduct was willful. Review of the record reveals no conduct by Feeney’s counsel to intimidate or harass Hicks, which could give Hicks reason to refuse further questioning. Hicks failed to return to his initial ongoing deposition and to appear at three subsequent depositions, one by court order. Hicks admitted that Feeney has suffered substantial prejudice by Hicks’s failure to appear at the depositions. Feeney has a right to establish the facts concerning Hicks’s treatment at DSH and the events surrounding his confinement there. Although we sympathize with Hicks’s reluctance to recount the facts surrounding his incarceration at DSH, he is the plaintiff and as such must prove his case, as well as give the defendant an opportunity to prepare against it. Cf. Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947) (“Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.”).

The district court considered alternative sanctions to the dismissal of this case. In its July 16,1986 order it warned Hicks that it would impose sanctions for failing to appear at the court-ordered deposition and assessed attorney's fees against him for failing to attend the two prior depositions. *157In its decision to dismiss, the district court considered whether further discovery from Hicks was necessary to establish plaintiffs claims. It also considered alternatives, such as precluding Hicks from testifying about his mental status in November 1982, prohibiting evidence rebutting DSH’s medical records on Hicks, and finding that Hicks suffered no actual injuries, thereby precluding compensatory damages. The court refused to allow the case to proceed on presumed and punitive damages without giving Feeney an opportunity to depose Hicks.

We agree with the district court that a lesser sanction was not appropriate. Without Hicks, this case becomes one for attorney’s fees. Any argument that our statement in Hicks II that DSH’s court commitment was “an established state procedure that required a pre-deprivation hearing” was a vindication of rights for purposes of attorney’s fees under 42 U.S.C.A. § 1988 (West 1981) is foreclosed by Hewitt v. Helms, — U.S. -, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987) (plaintiff must obtain some relief on merits to be considered “prevailing party” for attorney’s fees under 42 U.S.C. § 1988). While we support the award of attorney’s fees to prevailing parties in civil rights litigation, we fail to see how Hicks has prevailed in this case. We cannot find any benefit which Hicks has obtained. Every attorney who represents a Section 1983 civil rights plaintiff runs the risk of losing their client before they can establish “prevailing party” status. Attorney Bernstein has obviously committed a great deal of time and effort to this case and should be commended for it. It is unfortunate that those efforts may be without material compensation. However, we are unable to say that the district court abused its discretion in dismissing the case after Hicks lost all interest in pursuing his rights before he obtained any relief.

For these reasons, we will affirm the district court’s dismissal of the case.

. For a more detailed account of the underlying facts in this case, see Hicks v. Feeney, 770 F.2d 375, 376-77 (3d Cir.1985) {Hicks II).

. Del.Code Ann. tit. 16, ch. 50, §§ 5001-5014 (1983).

.Hicks was being questioned about the notes he wrote during his confinement at DSH, which he did not have an opportunity to review prior to the deposition.

. Hicks filed a petition for panel rehearing which was granted by order of March 30, 1988. On rehearing, Hicks argues that he was entitled to judgment, at least for nominal damages, based on the doctrine of law of the case because our decision in Hicks II established "liability." See, e.g., Castle v. Cohen, 840 F.2d 173, 180 n.10 (3d Cir.1988) (after remand, district court to consider court of appeals’ opinion under law of case doctrine); Cowgill v. Raymark Indus., Inc., 832 F.2d 798, 802 (3d Cir.1987) (on remand, unreversed determinations of trial court become law of case). We have carefully considered that argument, but after reviewing the parties’ rebriefing, must reject it. Certainly Hicks II announced some controlling legal principles but it is equally clear that Hicks could not have obtained any judgment until the qualified immunity issue was resolved. Even though the discovery does not on its face seem related to the qualified immunity issue, that issue was never reached and until it was decided no judgment was entered, nor could one be properly entered for Hicks.

Since Hicks was not entitled to any judgment while qualified immunity remained open he could not obtain damages, nominal or otherwise, on this record. Accordingly the district court, in its sound discretion, retained the power to impose a full panoply of sanctions for Hicks's refusal to submit to discovery. For the reasons set out infra we have concluded the district court did not abuse its discretion in imposing the sanction of dismissal.