Noel Romero Doye v. Sheriff Deputy Jason Colvin ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-14516 MAY 07, 2010
Non-Argument Calendar JOHN LEY
CLERK
________________________
D. C. Docket No. 08-00174-CV-BAE-4
NOEL ROMERO DOYE,
Plaintiff-Appellant,
versus
JASON COLVIN,
Sheriff Deputy,
CAPTAIN BRUCE DUNCAN,
Assistant Administrator, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(May 7, 2010)
Before EDMONDSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Noel Romero Doye appeals pro se the district court’s dismissal of his 42
U.S.C. § 1983 lawsuit against prison officials for their alleged physical abuse and
medical neglect. The district court dismissed his suit pursuant to Rules 37(b) and
41(b) of the Federal Rules of Civil Procedure for Doye’s refusal to submit to a
deposition. On appeal, Doye raises two issues. First, Doye contends the district
court failed to make a de novo review of the record before adopting the magistrate
judge’s report and recommendation stating the complaint should be dismissed.
Second, Doye asserts the district court erred in dismissing the complaint because
his refusal to submit to the deposition was not a willful or bad faith violation of
any discovery order and thus, dismissal was unwarranted under Rules 37 and 41.
Upon review, we conclude the district court erred in dismissing Doye’s complaint
and vacate and remand for further proceedings.
I.
Doye first contends the district court failed to conduct a de novo review of
the record prior to adopting the magistrate judge’s report and recommendation. A
district court may request the report and recommendation of a magistrate judge on
certain pre-trial motions pending before the court. See 28 U.S.C. § 636(b). If a
party objects to any portion of the magistrate judge’s report and recommendation,
the district court judge must “make a de novo determination of those portions of
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the report or specified proposed findings or recommendations to which objection is
made,” before adopting or rejecting the report and recommendation. 28 U.S.C.
§ 636(b)(1). The district court’s de novo review must include an “independent
consideration of factual issues based on the record.” Diaz v. United States, 930
F.2d 832, 836 (11th Cir. 1991).
In its order adopting the magistrate judge’s report and recommendation and
dismissing Doye’s § 1983 suit, the district court specifically stated it had
conducted “a careful de novo review of the record in this case.” Doye has
presented no evidence that leads us to question the veracity of the district court’s
statement or causes us to conclude the district court violated § 636(b) in adopting
the magistrate judge’s report and recommendation.
II.
Doye next contends the district court erred in sanctioning him with the
dismissal of his complaint, because the defendants’ attorney did not provide Doye
with proper notice of the deposition to which Doye declined to submit. Federal
Rule of Civil Procedure 37(b) provides a district court with authority to impose
sanctions, including dismissal of suit, on a party for failing to comply with a
discovery order. Fed. R. Civ. P. 37(b). Likewise, Rule 41(b) allows a defendant to
move for involuntary dismissal if the plaintiff fails to comply with a court order.
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Fed. R. Civ. P. 41(b). The “trial court’s discretion regarding discovery sanctions is
not unbridled,” however, as we have “consistently held” that “dismissal is justified
only in extreme circumstances and as a last resort.” Wouters v. Martin County,
Fla., 9 F.3d 924, 933 (11th Cir. 1993) (discussing Rule 37(b) dismissal); Goforth
v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985) (discussing the hesitancy a court
should have in dismissing a case pursuant to Rule 41(b)).
When a district court dismisses a plaintiff’s complaint as a discovery
sanction under Rules 37 and 41, we review for abuse of discretion and to ensure
“that the findings of the trial court are fully supported by the record.” See
BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1048 (11th Cir.
1994) (quotations and citations omitted) (discussing dismissal pursuant to Rule
37); Goforth, 766 F.2d at 1535 (reviewing dismissal under Rule 41). An abuse of
discretion “occurs if the court fails to apply the proper legal standard or to follow
proper procedures in making the determination,” or if the court relies on “clearly
erroneous” facts. See Gray ex rel. Alexander v. Bostic, 570 F.3d 1321, 1324 (11th
Cir. 2009) (quotation omitted) (addressing an award of attorney’s fees).
Because it is such a drastic sanction, before dismissing a lawsuit pursuant to
either Rule 37 or 41, a district court must first find (1) the plaintiff’s failure to
comply with relevant order was willful or in bad faith; and (2) lesser sanctions
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would not suffice. See Wouters, 9 F.3d 933–34 (reversing Rule 37(b) dismissal);
Goforth, 766 F.2d at 1535 (discussing prerequisites to a Rule 41(b) dismissal).
The district court is not required to explicitly state its consideration of lesser
sanctions before dismissing the suit if the record “clearly demonstrates” that the
sanctionee “deliberately and defiantly refused to comply with” the court’s
discovery orders. Phipps v. Blakeney, 8 F.3d 788, 790–91 (11th Cir. 1993).
Nevertheless, we have noted that in some “close cases,” the district court’s “failure
to explain why a lesser sanction was not used may result . . . in a reversal or
vacation of an order of dismissal.” Id. at 791.
We conclude the district court’s dismissal of Doye’s complaint was not
supported by the findings or analysis required by our precedent. First, the record
in this case does not support the finding that Doye willfully or in bad faith refused
to comply with the discovery order in question. Second, the magistrate judge’s
report and recommendation, adopted by the district court, appears to have omitted
any consideration of whether, had Doye’s conduct been willful, lesser sanctions
would have sufficed to achieve the goals of Rules 37 and 41.
The district court entered an order stating defendants could depose Doye “as
noticed prior to June 22, 2009.” Rule 30 of the Federal Rules of Civil Procedure
requires that a party seeking to depose someone provide reasonable written notice
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to every other party of, inter alia, the time and place of the deposition. Fed. R.
Civ. P. 30(b)(1). Originally, defendants sought to depose Doye on May 29, 2009.
Defendants provided Doye with notice, and Doye prepared himself for that
deposition. Defense counsel, however, failed to show up at Doye’s correctional
facility for the scheduled deposition. The day of the missed deposition, defense
counsel mailed notice that he was rescheduling the deposition for June 3, 2009.
Thus, notice was mailed to Doye only four days prior to the date of the newly
proposed deposition date. Doye claims not to have received notice, and there is no
evidence on record suggesting to the contrary. In fact, defendants admit that four
days was insufficient “to have supplied Doye with advance written notice, given
the constraints of the United States Postal Service and the prison’s mail system.”
Doye claims that when defense counsel arrived at his prison on June 3, he
did not submit to the deposition because he was not mentally or medically prepared
to be deposed. He claims he was not disobeying the court’s discovery order
willfully or in bad faith by refusing to be deposed, because he believed he had a
right to proper notice.
The magistrate judge’s report and recommendation rejects Doye’s
contention that he did not receive notice, citing the May 29 mailing which
defendants themselves concede was unlikely to have reached Doye prior to June 3.
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The magistrate judge then entirely dismisses the issue of whether Doye received
actual notice of the rescheduling, stating it “ha[d] little bearing on this case,”
because Doye was “prepared for the deposition on May 29, and, as a prisoner, he
had no scheduling conflicts that prevented his appearance [on the 3rd].” Rule 30
however, does not contain an exception to the notice requirement merely because
the intended deponent is a prisoner.
Later, the district court judge, in granting Doye’s petition to proceed in
forma pauperis in the present appeal, acknowledged “the Court did not inquire into
whether [Doye] had actual notice of the deposition” and that if Doye never
received notice, “then he did nothing wrong by refusing to be deposed.” We
conclude there is nothing in the record that supports the proposition that Doye had
actual notice his deposition had been rescheduled and thus nothing to support the
finding that Doye’s refusal to submit to the June 3 deposition was willful or bad
faith violation of a discovery order. We, therefore, hold the dismissal of his
complaint as a sanction for that refusal was an abuse of discretion.
Further, the adopted report and recommendation did not discuss whether
lesser sanctions would have been appropriate, even had Doye’s refusal to be
deposed been a willful or bad faith violation. Rather, the magistrate judge states
merely that “willfulness is a relevant consideration” in determining whether lesser
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sanctions are appropriate. As explained above, however, precedent requires courts
engage in a two-step analysis prior to dismissing a complaint for the violation of a
discovery order: the court first determines if the violation was willful or in bad
faith, next it determines whether lesser sanctions would suffice. This is not a case
in which the evidence of willful disobedience renders superfluous explicit analysis
of lesser sanctions, such as the lesser sanction requested by the defendants as an
alternative to dismissal of the suit: a court order compelling Doye to submit to the
deposition. In conflating the two prerequisite analytical steps to dismissal of the
suit, the adopted report and recommendation erred.
Based on the aforementioned bases, we vacate the district court’s dismissal
of Doye’s 42 U.S.C. § 1983 suit and remand for further proceedings.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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