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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11179
____________________
CHRISTOPHER LEE AMERSON,
Plaintiff-Appellant,
versus
COMMISSIONER, GEORGIA DEPARTMENT OF
CORRECTIONS,
MICHAEL PASCHAL,
Unit Manager, Hancock State Prison,
LT UNTRAY BELLINGER,
Supervisor, Hancock State Prison,
SGT FREDRICK WILSON,
Supervisor, Hancock State Prison,
KANDI STEPHENS,
CO2 Officer, Hancock State Prison,
BRUSTAVIOUS COOPER,
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2 Opinion of the Court 20-11179
CO2 Officer, Hancock State Prison,
SGT SERRIA HARRISON,
Supervisor, Hancock State Prison,
ANNETTIA ASHLEY-TOBY,
Warden, Hancock State Prison,
GEORGE IVEY, JR.
Warden of Security, Hancock State Prison,
HANCOCK SP WARDEN,
DOCTOR LIFT,
Hancock State Prison,
NURSE WARREN,
Hancock State Prison,
NURSE DAVIS,
Hancock State Prison, et al.,
Defendants-Appellees,
JEREMY FOSTON,
Chief Counselor, Hancock State Prison, et al.,
Defendants.
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20-11179 Opinion of the Court 3
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:18-cv-00376-TES-CHW
____________________
Before NEWSOM, BRANCH, and BRASHER, Circuit Judges.
NEWSOM, Circuit Judge:
Christopher Amerson, a Georgia inmate, sued several prison
officials under
42 U.S.C. § 1983, proceeding pro se. After disregard-
ing court orders and filing several improper and repetitive motions,
Amerson claimed to be incompetent on the day of his deposition
and refused to participate. That was the straw that broke the
camel’s back—defendants moved for sanctions, and the district
court dismissed his complaint with prejudice. We affirm.
I
Amerson filed his complaint in 2018, at which point he
moved to proceed in forma pauperis and for the appointment of
counsel. Pursuant to the Prison Litigation Reform Act, those mo-
tions were routed to a magistrate judge, who (1) granted Amer-
son’s motion to proceed IFP, (2) denied his motion to appoint
counsel, and (3) sua sponte ordered Amerson to recast his com-
plaint, which alleged multiple claims against multiple defendants
that spanned multiple years.
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4 Opinion of the Court 20-11179
About two weeks later, Amerson filed his recast com-
plaint—in accordance with the specific instructions that the magis-
trate judge provided—and a motion to compel discovery. The
main thrust of his recast complaint was that prison officials had poi-
soned his food, causing him medical complications. The magis-
trate judge screened Amerson’s recast complaint and determined
that he had properly alleged claims sounding in the Eighth Amend-
ment. The magistrate judge denied his motion to compel discov-
ery and recommended dismissing Amerson’s remaining claims
without prejudice. The district court adopted the magistrate
judge’s report and recommendation over Amerson’s objection and
ordered him to file a second recast complaint.
After Amerson filed his second recast complaint, defendants
filed their answers and the litigation picked up steam. In the
months that followed, Amerson lodged at least 37 separate filings
with the court, including: (1) ten motions to amend his complaint,
each of which was denied; (2) three motions to compel disclosure
or discovery, each of which was denied with explicit instructions
that Amerson must first confer in good faith with the opposing
party—which he never did; (3) two motions for reconsideration,
both of which were denied; (4) two motions for sanctions, both of
which were denied; and (5) two additional motions to appoint
counsel, both of which were denied with explicit instructions not
to file additional motions to appoint.
Despite that deluge of filings, discovery moved forward.
Defendants filed a notice of deposition, which was formally
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20-11179 Opinion of the Court 5
acknowledged by Amerson on December 3, 2019, and scheduled
for December 19. Amerson showed up for his deposition on the
19th, but—notwithstanding an earlier warning “that failure to sub-
mit to a deposition may result in dismissal” of his suit, see Magis-
trate Judge’s Order and Recommendation at 19 (emphasis omit-
ted)—refused to participate.
Instead, when he arrived, he asserted that he didn’t “feel
competent . . . to be able to answer . . . questions.” Dep. Tr. at 5.
He stated that he hadn’t slept in two days due to an illness that he
attributed to prison officials “putting stuff . . . inside [his] meals.”
Id. He further claimed that, due to his illness, he had “turned in a
sick call to the [prison] nurse and asked for an examination,” but he
had not received any medical attention.
Id. So, Amerson informed
defense counsel that he was not “going to be able . . . to participate
competently . . . in the d[e]position,” and that for defense counsel
to continue the deposition would “be in bad faith.”
Id.
The defendants’ lawyers probed Amerson a bit further. In
response, Amerson acknowledged that he was capable of “under-
stand[ing] the difference in the truth and a falsehood” but nonethe-
less confirmed that he was “refusing to answer any questions that
[defense counsel] ha[d] about the case.”
Id. at 5–6. In light of that,
defense counsel informed Amerson that—due to his “representa-
tion that [he was not] going to be able to go forward”—the parties
would “suspend the deposition.”
Id. at 7. But before concluding,
defense counsel warned Amerson that they would seek sanctions,
including “dismissal of [his] case for refusing to cooperate.”
Id.
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The following day, Amerson mailed the district court a re-
quest styled “Motion to Terminate Deposition,” in which he ex-
plained that prison officials served him meals that “caused sever[e]
headaches, repeated hot spells, and deprived [him] of any sleep” for
“several days” leading up to the deposition. Amerson averred that
because of that, he was “irritable” and “frustrated” and unable to
“recall[] . . . dates and other stuff that he usually ha[d] no problem
recalling” at the deposition. Because of his purported illness, Am-
erson requested that the district court suspend the deposition “long
enough for [him] to get evaluated.”
As promised, defendants filed a motion for sanctions due to
Amerson’s refusal to participate in the deposition. They asserted
that, although Amerson claimed incompetence at the deposition,
he had been able to recall and discuss specific dates of filings and
other details about the case. Moreover, defendants produced a dec-
laration by Amerson’s prison counselor, who stated under oath
that when she visited Amerson a few hours after the deposition
ended, he: (1) affirmed he was feeling “okay”; (2) “was acting as he
normally does”; and (3) “did not report any medical problems, sick-
ness or lack of sleep,” nor did he “report feeling as though he had
been poisoned.” Additionally, defendants claimed that Amerson’s
medical records belied his statement that he had sought a medical
evaluation prior to the deposition. Accordingly, defendants re-
quested that the district court dismiss all of Amerson’s claims with
prejudice. In the alternative, defendants requested that the district
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20-11179 Opinion of the Court 7
court re-open discovery and award costs and fees incurred by the
failed deposition attempt.
The magistrate judge issued a report recommending dismis-
sal with prejudice. The magistrate judge acknowledged that dis-
missal with prejudice was an “extreme” remedy, but nonetheless
concluded that it was warranted because: (1) Amerson had “persis-
tently violated” the court’s “clear and repeated instructions and
warnings”; (2) he had been specifically warned that a failure to sub-
mit to a deposition “may result in the dismissal of his lawsuit”;
(3) he had “manipulated the adjudicative process to abuse his op-
ponents”; (4) his “asserted incompetency” at the deposition “was a
manipulative tactic”; and (5) “the record both in this case” and an-
other case in which Amerson was involved “demonstrate[d] that
less drastic sanctions . . . ha[d] failed to break [him] of his habit of
routinely engaging in abusive” litigation conduct. R. & R. at 3–5.
The district court adopted the magistrate judge’s report and
recommendation in full. The court emphasized that Amerson had
failed to follow court orders, that he had been “clearly capable” of
giving his deposition, and that he had displayed similar “bad faith”
in previous litigation. Accordingly, and because “lesser sanctions
. . . would be insufficient, as made evident by Amerson’s willful dis-
regard for the Court’s previous orders,” the court dismissed Amer-
son’s claims with prejudice.
Amerson, now represented by counsel, appeals that dismis-
sal. He contends that the district court reversibly erred because
(1) it failed to establish that he had engaged in a “‘clear pattern’ of
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8 Opinion of the Court 20-11179
willful disregard of a court order,” and (2) it failed to “meaningfully
consider whether lesser sanctions would suffice to correct the con-
duct at issue.” Appellant’s Br. at 2.
II
Federal Rule of Civil Procedure 41(b) “authorizes a district
court to dismiss a complaint for failure to prosecute or failure to
comply with a court order or the federal rules.” Gratton v. Great
Am. Commc’ns,
178 F.3d 1373, 1374 (11th Cir. 1999) (per curiam).
Similarly, Rule 37 grants the district court “broad authority” to
“control discovery, including dismissal as the most severe sanc-
tion.” Id.; see also Fed. R. Civ. P. 37(b)(2)(A)(v). 1
Although the court has the authority to do so, “dismissal
with prejudice . . . is an extreme sanction that may be properly im-
posed only when: (1) a party engages in a clear pattern of delay or
willful contempt,” and “(2) the district court specifically finds that
lesser sanctions would not suffice.” Betty K Agencies, Ltd. v. M/V
Monada,
432 F.3d 1333, 1337–38 (11th Cir. 2005) (quotation marks
and emphasis omitted). Although “findings satisfying both prongs
. . . are essential before dismissal with prejudice is appropriate,”
those findings can be “implicit.” Id. at 1139 (quotation marks and
emphasis omitted). In some cases, “[n]o explanation o[f] why lesser
1 We review “dismissals under [Federal Rules of Civil Procedure] 41 and 37 for
abuse of discretion.” Gratton, 178 F.3d at 1374. “We review the district
court’s findings of fact” underpinning such dismissals “for clear error.” Zoca-
ras v. Castro,
465 F.3d 479, 483 (11th Cir. 2006).
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20-11179 Opinion of the Court 9
sanctions would not have worked [is] necessary.” Phipps v.
Blakeney,
8 F.3d 788, 790 (11th Cir. 1993).
Moreover, “dismissal upon disregard of an order, especially
where the litigant has been forewarned, generally is not an abuse
of discretion.” Moon v. Newsome,
863 F.2d 835, 837 (11th Cir.
1989). That’s so even “where less drastic sanctions are available.”
Phillips v. Ins. Co. of N. Am.,
633 F.2d 1165, 1168 (5th Cir. Unit B
1981).
Amerson contends that the district court erred with respect
to both prongs. We divide our discussion accordingly.
A
Amerson asserts that three independent errors undermine
the district court’s determination that he engaged in a pattern of
willful misconduct. We address them in turn.
1
First, Amerson contends that the district court’s statement
that he failed to file a protective order to excuse his deposition is
incorrect, and that he could not have filed a pre-deposition motion
for a protective order. Instead, he claims that he did seek a protec-
tive order to postpone the deposition and that it would have been
impossible to do so before the deposition.
Amerson is correct that he filed an after-the-fact motion to
postpone the deposition, but the record does not support his asser-
tion that he couldn’t have done so before the fact. His alleged
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10 Opinion of the Court 20-11179
illness arose (he claims) from being served poisoned meals. He
stated that his food was being poisoned “the day” after he “sign[ed]
for the . . . Notice of Deposition”—on December 3, approximately
two and a half weeks before his deposition occurred—and “[c]on-
tinually” thereafter. Pl.’s Mot. to Terminate Dep. at 1.
Taking Amerson at his word, then, his poisoned meals ren-
dered him incompetent from December 3 “all the way up until [he]
was taken to the . . . deposition.” Id. at 2. Accordingly, the district
court did not clearly err in determining that Amerson could have
sought pre-deposition relief at any time in that window preceding
his deposition.2
2 On appeal, Amerson asserts that his competency issues were grounded in
“circumstances that had arisen the night before the deposition.” Appellant’s
Br. at 20. And he claims that his motion to the district court “explained” that
“his situation worsened in the two days leading up to the deposition” and that
his “lack of sleep intensified his existing health concerns” in that period imme-
diately preceding his deposition. Appellant’s Reply Br. at 13. A fair reading of
Amerson’s motion tells a different story.
True, Amerson stated in his motion to the district court that he “hadn’t
been able to sleep for over 48 hours” and that he had suffered “over 2 days of
restlessness.” Pl.’s Mot. to Terminate Dep. at 2–3. But that is not an “expla[na-
tion]” that “his situation worsened.” Appellant’s Reply Br. at 13. Instead,
those specific facts are best read in context as a “continua[tion]” of his symp-
toms that, he said, began on “the day following [his] signing for the . . . Notice
of Deposition” and lasting “all the way up until [he] was taken” to the deposi-
tion. Pl.’s Mot. to Terminate Dep. at 1–2. The district court did not clearly
err when it determined that the issue “could and should have been . . . raised
in a pre-deposition motion for protective order.”
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2
Next, Amerson contends that the district court’s conclusion
that his asserted incompetency was “a manipulative tactic” is un-
supported by the record. We disagree.
The court’s “manipulative tactic” finding was rooted pri-
marily in its determination that “Amerson was clearly capable of
discussing and recalling other matters” while simultaneously
“claiming to be incapacitated.” Order Adopting R. & R. at 4; see
also R. & R. at 5. That finding is supported by the record.
At the deposition, Amerson engaged with defense counsel
for more than half an hour, during which time he was able to recall
specific dates and docket numbers. Moreover, Amerson told de-
fense counsel that he had “turned in a sick call” due to his illness.
But that assertion was refuted by the prison’s health administrator,
who stated under oath that Amerson did not seek or receive a med-
ical evaluation between December 15 and 21. Separately, less than
three hours after his deposition ended, Amerson told his prison
counselor that he was “okay” and did not mention “any medical
problems, sickness or lack of sleep,” nor did he “report feeling as
though he had been poisoned.” In fact, the counselor stated under
oath that “he was acting as he normally does.”
In light of that record evidence, it was not clear error for the
district court to conclude that Amerson was able to testify, but al-
leged incompetency as a “manipulative tactic.”
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3
Finally, Amerson asserts that even if his “failure to partici-
pate in his deposition [was] willful, . . . the failure to participate in
one deposition does not establish a ‘pattern of willful conduct.’”
Appellant’s Br. at 22 (cleaned up). That premise is valid, but it is
inapplicable here.
The district court did not base its pattern-of-willful-conduct
determination solely on Amerson’s failure to participate in the dep-
osition. Rather, it stated that the deposition was only “the latest
and most flagrant example” of a larger pattern of misconduct and
abusive litigation tactics that included: (1) filing four motions to
compel discovery, which he filed despite the court’s repeated in-
structions that the motions were improper or premature; (2) filing
three motions to appoint counsel, the last of which he filed despite
the court’s previous admonition that he should not “file additional
requests for counsel”; and (3) filing myriad motions to amend his
complaint, at least some of which blatantly ignored the court’s ear-
lier instructions, and which led the magistrate judge to describe
Amerson as attempting “to obtain amendment by process of attri-
tion.”
* * *
The district court did not err when it determined that Am-
erson had engaged in a pattern of willful misconduct justifying dis-
missal of his case.
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B
Amerson separately contends that the court erred because it
failed to “independently and meaningfully consider whether lesser
sanctions would be insufficient.” Appellant’s Br. at 13 (capitaliza-
tions omitted). We disagree.
The district court expressly stated that “lesser sanctions”—
including “non-prejudicial dismissal” or an order “compelling Am-
erson to take his deposition”—“would be insufficient.” It’s true
that the district court did not discuss in depth exactly why lesser
sanctions wouldn’t suffice. But this isn’t a case in which further
analysis was necessary—“some cases . . . are clear enough without
the district court adding a section to its opinion to explain why
lesser sanctions were not used.” Phipps,
8 F.3d at 791. “This case
is one of those cases.”
Id.
As in Moon, “[t]he record” in this case “supports what is im-
plicit”—and, in places, explicit—“in the district court’s decision to
dismiss this case—that [Amerson] had been repeatedly and stub-
bornly defiant.” Moon,
863 F.2d at 839. The record is replete with
examples of Amerson’s defiance—he had proven on multiple occa-
sions that further admonition by the district court was unlikely to
yield results.
Moreover, the district court did consider explicitly two spe-
cific lesser sanctions. It determined that neither was sufficient, and
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14 Opinion of the Court 20-11179
that determination is supported by the record. That was not an
abuse of discretion.3
* * *
Amerson repeatedly defied court orders and acted in bad
faith. After being warned that his actions could result in dismissal,
that’s exactly what happened. Making good on that threat of dis-
missal was not an abuse of discretion. See Moon,
863 F.2d at 837
(“[D]ismissal upon disregard of an order, especially where the
3 Amerson relies on a handful of cases that he asserts are “indistinguishable”
and “require[] reversal.” Appellant’s Br. at 15, 16. We don’t see it that way.
Take Mingo v. Sugar Cane Growers Co-op,
864 F.2d 101 (11th Cir. 1989) (per
curiam), for example. That case is distinct from Amerson’s because, there, the
district court failed to make any “finding concerning the efficacy of sanctions
less severe than dismissal.”
Id. at 102–03. Similarly, in Betty K, we held that
the district court abused its discretion because it “failed entirely to find . . . that
lesser sanctions were inadequate.”
432 F.3d at 1339 (emphasis added). So too
in Serra Chevrolet, Inc. v. General Motors Corp.,
446 F.3d 1137 (11th Cir.
2006). There, we held that the district court abused its discretion when it
“fail[ed] to give any justification for its decision.”
Id. at 1152 (emphasis added).
Those decisions stand for the proposition that the district court must
make a finding that lesser sanctions are inadequate, and the court’s reasoning
must be sufficient “to provide meaningful review on appeal.”
Id. They do not
require a district court to engage in a lengthy analysis explaining itself every
step of the way. Thus, because the court here explicitly stated that “lesser
sanctions . . . would be insufficient” and explained, albeit briefly, why that is
so—and because the record in this case demonstrates Amerson’s “repeated[]
and stubborn[] defian[ce],” Moon,
863 F.2d at 839—the court did not abuse its
discretion.
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20-11179 Opinion of the Court 15
litigant has been forewarned, generally is not an abuse of discre-
tion.”).4
AFFIRMED.
4 Dismissal in this case is appropriate for two additional reasons. First, it ac-
complishes Rule 37’s dual purposes of penalizing bad-faith conduct and deter-
ring others from engaging in it in the future. See Nat’l Hockey League v.
Metro. Hockey Club, Inc.,
427 U.S. 639, 643 (1976) (per curiam). Even if a
lesser sanction might have cured Amerson’s conduct, the district court none-
theless was entitled to impose a more severe sanction “to deter those who
might be tempted to [engage in similar] conduct in the absence of such a de-
terrent.”
Id. Second, we’ve held that “dismissal with prejudice is thought to
be more appropriate in a case where”—like this one—“a party, as distinct from
counsel, is culpable.” Betty K,
432 F.3d at 1338.
