Charles Donelson v. Wexford Health Sources, Inc. ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐2739
CHARLES DONELSON,
Plaintiff‐Appellant,
v.
DARRISE HARDY AND WEXFORD HEALTH SOURCES, INC.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 1249 — Gary Feinerman, Judge.
____________________
SUBMITTED JUNE 20, 2019 — DECIDED JULY 9, 2019 —
OPINION ISSUED JULY 19, 2019*
____________________
Before KANNE, BARRETT, and BRENNAN, Circuit Judges.
PER CURIAM. Charles Donelson sued a nurse and Wexford
Health Sources, Inc., for allegedly providing him with
* We have agreed to decide this case without oral argument because
the briefs and record adequately present the facts and legal arguments,
and oral argument would not significantly aid the court. FED. R. APP. P.
34(a)(2)(C). The court initially resolved this appeal by nonprecedential or‐
der. The order is being reissued as an opinion.
2 No. 18‐2739
constitutionally deficient medical care in prison and retaliat‐
ing against him for filing other lawsuits. After the district
court decided that he obstructed discovery in bad faith, it dis‐
missed his suit as a sanction. The district court responded rea‐
sonably to Donelson’s insubordination, so we affirm.
We begin by describing Donelson’s case. Donelson, an
Illinois inmate, moved to Stateville Northern Reception and
Classification Center (an Illinois prison) in 2013. Upon his ar‐
rival, Darrise Hardy, a prison nurse, screened him for medical
issues. Donelson is asthmatic, and he told Hardy that he
needed a new inhaler for his breathing problems. Hardy re‐
sponded that he could get one from a doctor. Donelson had
to wait 16 days to see a doctor, though the defendants say that
he could have gone to the commissary at any time for an in‐
haler. Donelson received an inhaler from a doctor 20 days af‐
ter arriving at Stateville. Invoking 42 U.S.C. § 1983, he now
alleges that Hardy and her employer, Wexford, violated the
Eighth Amendment (through deliberate indifference to his
asthma) and the First Amendment (by delaying his care to re‐
taliate for prior lawsuits).
During discovery, the court encountered several prob‐
lems. The first problem involved Donelson’s conflict with his
lawyer. The court recruited counsel for Donelson, but it later
allowed counsel to withdraw after Donelson accused counsel
of being “dishonest.” The second problem was Donelson’s
false assertion that Wexford had refused to respond to his
document requests. The district court found otherwise:
Based on the Court’s review of Wexford’s re‐
sponses and the documents Wexford has pro‐
duced to Plaintiff, the Court does not credit
Plaintiff’s allegations concerning the adequacy
No. 18‐2739 3
of Wexford’s response to the discovery request
upon which Plaintiff focuses in his motion [to
compel]. It appears that the documents Plaintiff
says he did not receive are attached to his mo‐
tion to compel and identified in a delivery re‐
ceipt … Further, Wexford provided the Court
with copies of the documents it produced to
Plaintiff, and they are the Wexcare documents
Plaintiff specifically requested.
The third problem was Donelson’s obstructive behavior
during his deposition. This came to light after the defendants
moved for summary judgment. The defendants attached to
their motion a transcript of Donelson’s deposition, which oc‐
curred at Stateville. Upon receiving this, the district court in‐
voked its inherent powers and FED. R. CIV. P. 37 to order
Donelson to explain why his case should not be dismissed as
a sanction for his misconduct during his deposition. Here are
representative examples.
 Donelson professed not to understand simple ques‐
tions, no matter how many times counsel rephrased them,
and refused to answer them:
Q: Have you received medical care at any Illinois
Department of Corrections prison prior to De‐
cember 30th, 2013?
A: I don’t understand your question.
Q: Do you understand that December 30th, 2013 is
a date?
A: Yes, I understand that is the date that this inci‐
dent occurred.
4 No. 18‐2739
Q: Wonderful. Before this incident occurred–
A: I object to that.
Q: I havenʹt finished my question. Before this inci‐
dent occurred, sir, have you ever received med‐
ical attention at an Illinois Department of
Corrections prison?
A: I donʹt recall. I donʹt understand your question.
Q: When did you first enter Stateville NRC in your
life?
A: What do you mean by my life?
…
Q: Is it your testimony that prior to December 30th,
2013, you had never been in Stateville NRC in
your life, meaning date of birth until December
30th, 2013?
A: I do not understand that question.
Q: Sir, I cannot phrase that anymore specifically.
From the date you were born, until December
30th, 2013, had you ever been at Stateville
Northern Reception and Classification Center?
A: I donʹt understand that question.
Q: Had you physically had your body inside Stat‐
eville NRC from the date of your birth until any
date prior to December 30th, 2013?
A: I donʹt understand the question.
No. 18‐2739 5
 To delay answering questions even further, without
basis Donelson accused opposing counsel of bringing contra‐
band (an inhaler) into Stateville:
Q: You are holding an inhaler right now, so clearly
you did get medical care at some point. How
did you get that?
A: You gave it to me.
Q: I personally gave that to you?
A: Yes. That is your contraband.
Q: Sir, what are you talking about? You are saying
that is my inhaler?
A: Yeah. Do you want it?
 Donelson refused to answer any question that he
found irrelevant.
Q: So you have to agree with me at some point in
your life you have received medical care in the
Department of Corrections prison, correct?
A: When you say life, sir, you have to be more de‐
fined. You have to describe exactly what you
mean by life. I have not been here my life.
Q: But you have been here for portions of your life,
correct?
A: That is irrelevant … .
The judge found this conduct indefensible. He described
Donelson’s responses as “evasive and argumentative an‐
swers” enhanced by “dishonesty and false obtuseness.” Do‐
nelson replied that he was just “stick[ing] to the merit of this
case” as ordered, that he was genuinely confused by the
6 No. 18‐2739
questions, that he was not feeling well, and that he should not
be sanctioned because the defendants had not asked for sanc‐
tions. The judge was unpersuaded. Donelson was not con‐
fused, the judge ruled, because a deposition transcript (which
Donelson himself submitted) from another case showed that
he could understand similar questions. Moreover, “no judi‐
cial officer suggested to Donelson that he was free to disre‐
gard the rules governing depositions.” And, the judge noted,
Donelson’s attempt to blame his conduct on his health was
disingenuous because Donelson had told counsel that he felt
well enough to continue with the deposition. Finally, the
judge observed, the court had the authority to impose sanc‐
tions itself, even without a motion from the defendants.
The judge ruled that dismissal with prejudice and an
award of costs was a proper sanction. First, “Donelson acted
willfully and in bad faith.” Second, although dismissal is “se‐
vere,” the judge found it “proportional and appropriate given
Donelson’s grossly unacceptable conduct, the need to convey
the seriousness of his violations, the obvious insufficiency of
a verbal or written warning, and his present inability to pay
any meaningful monetary sanction.” Donelson’s conduct at
his deposition was enough, the judge thought, to justify dis‐
missal, but his behavior earlier in the case—accusing without
evidence recruited counsel and Wexford of misconduct—also
supported dismissal. The defendants later asked for approxi‐
mately $200 in court costs. Donelson argued that costs were
not appropriate because the district court did not decide the
case at summary judgment. The judge disagreed and granted
the request.
We review for an abuse of discretion the dismissal of case
as a sanction. See Chambers v. NASCO, Inc., 501 U.S. 32, 55
No. 18‐2739 7
(1991); Ramirez v. T&H Lemont, Inc., 845 F.3d 772, 782 (7th Cir.
2016). Three sources of the power to sanction are relevant
here. First, sanctions issued under the court’s inherent powers
are justified if the offender willfully abuses the judicial pro‐
cess or litigates in bad faith. See Emerson v. Dart, 900 F.3d 469,
473 (7th Cir. 2018). Second, Federal Rule of Civil Procedure 37
permits sanctions, including dismissal, when a party “fails to
obey an order to provide or permit discovery.” Third, under
Federal Rule of Civil Procedure 30(d)(2), a court may impose
sanctions if a deponent “impedes, delays, or frustrates [his]
fair examination.” Sanctions under all three sources are justi‐
fied by bad‐faith conduct, a finding that the district court
made and that we review for clear error. In re Golant, 239 F.3d
931, 936 (7th Cir. 2001).
The record amply supports the judge’s finding of bad
faith. As the district judge observed, Donelson was not con‐
fused by counsel’s questions because the deposition tran‐
script from the other case shows that he could readily answer
similar questions. His contention that he was just sticking to
the merits of this case is refuted by the excerpts from the dep‐
osition transcript of this case, which shows that he refused to
answer questions about the merits. And poor health was no
defense to his behavior because Donelson conceded during
the deposition that he felt well enough to continue. Finally, as
the district court noted, it had the authority to find bad faith
without waiting for a motion from the defendants. See
Chambers, 501 U.S. at 42 n.8; Johnson v. Cherry, 422 F.3d 540,
551 (7th Cir. 2005).
Donelson argues that the judge could not find bad faith
without holding a hearing, but an oral hearing was not re‐
quired. The court gave Donelson notice of the possible
8 No. 18‐2739
sanction and an opportunity to respond to its order to show
cause. That was sufficient process. See Morjal v. City of Chicago,
774 F.3d 419, 422 (7th Cir. 2014); Larsen v. City of Beloit, 130
F.3d 1278, 1286–87 (7th Cir. 1997) (citing Kapco Mfg. Co., Inc. v.
C & O Enters., Inc., 886 F.2d 1485, 1494 (7th Cir. 1989)).
Next, Donelson contends that the sanction of dismissal
was too severe. Sanctions, including dismissal, must be pro‐
portionate to the circumstances. See Nelson v. Schultz, 878 F.3d
236, 238–39 (7th Cir. 2017); Ty Inc. v. Softbelly’s, Inc., 517 F.3d
494, 499–500 (7th Cir. 2008). Considerations relevant to pro‐
portionality include the extent of the misconduct, the ineffec‐
tiveness of lesser sanctions, the harm from the misconduct,
and the weakness of the case. See Pendell v. City of Peoria, 799
F.3d 916, 917 (7th Cir. 2015); Salata v. Weyerhaeuser Co., 757
F.3d 695, 699–700 (7th Cir. 2014); Kasalo v. Harris &
Harris, Ltd., 656 F.3d 557, 561 (7th Cir. 2011).
These factors all support dismissal as a proportionate
sanction. First, Donelson’s misconduct was extensive. He re‐
fused to answer deposition questions by pretending “confu‐
sion,” by falsely accusing counsel of trafficking contraband,
and by deeming questions “irrelevant.” Earlier, he had with‐
out basis accused his lawyer of dishonesty and falsely accused
Wexford of not producing documents. Second, lesser sanc‐
tions would not work. Warnings were ineffective—the court
had criticized Donelson’s baseless motion to compel docu‐
ments, and opposing counsel tried to no avail to get Donelson
to answer questions. Fines would be ineffective because
Donelson had filed this suit in forma pauperis; if he could not
afford the filing fee, a monetary sanction would not deter him.
See Hoskins v. Dart, 633 F.3d 541, 544 (7th Cir. 2011). Third, the
harm was substantial. By lying to avoid giving evidence,
No. 18‐2739 9
Donelson essentially falsified testimony. “[F]alsifying evi‐
dence to secure a court victory undermines the most basic
foundations of our judicial system. If successful, the effort
produces an unjust result. Even if it is not successful, the effort
imposes unjust burdens on the opposing party, the judiciary,
and honest litigants who count on the courts to decide their
cases promptly and fairly.” Secrease v. W. & S. Life Ins. Co., 800
F.3d 397, 402 (7th Cir. 2015). Finally, the case was weak:
Donelson never properly opposed the defendants’ statement
of undisputed facts, which pointed out that Donelson could
get an inhaler at any time.
Donelson’s last contention challenges the district court’s
award of costs. Federal Rule of Civil Procedure 54(d) creates
a presumption that a prevailing party will recover costs, and
we review the district court’s decision to award costs for an
abuse of discretion. See Baker v. Lindgren, 856 F.3d 498, 502 (7th
Cir. 2017). Because the district court dismissed the suit with
prejudice, the defendants were prevailing parties entitled to
costs. See Ogborn v. United Food & Commercial Workers Union,
Local No. 881, 305 F.3d 763, 769–70 (7th Cir. 2002). The district
court awarded costs for a court reporter, transcript services,
and delivery services—all within the district court’s discre‐
tion. See 28 U.S.C. § 1920; Majeske v. City of Chicago, 218 F.3d
816, 824–26 (7th Cir. 2000).
We have considered Donelson’s other contentions, but
none merits discussion. The judgment of the district court is
AFFIRMED.