John Evans v. Susan Griffin , 932 F.3d 1043 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1957
JOHN EVANS,
Plaintiff-Appellant,
v.
SUSAN GRIFFIN, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 16-3093-HAB — Harold A. Baker, Judge.
____________________
ARGUED FEBRUARY 4, 2019 — DECIDED AUGUST 7, 2019
____________________
Before WOOD, Chief Judge, and EASTERBROOK and ST. EVE,
Circuit Judges.
WOOD, Chief Judge. John Evans is a state prisoner and, un-
questionably, not a healthy man. His most recent malady is
the subject of this lawsuit. Evans alleges that he developed na-
sal polyps and that the prison medical staff refused to author-
ize surgery—the only effective remedy—for him. Frustrated
within the prison, he brought this suit under 42 U.S.C. § 1983,
alleging a violation of his Eighth Amendment rights. The
2 No. 17-1957
district court never reached the merits of that claim, however,
because it dismissed Evans’s case with prejudice as a discov-
ery sanction. Dr. Francis Kayira, one of the defendants, at-
tempted to depose Evans. Kayira noticed the deposition by
mail on Thursday, February 16, 2017, for the next Tuesday,
February 21. Evans swears that he did not receive that notice
until February 22, the day after the designated time. When, on
the 21st, he was brought out from his cell to meet with the
defendants’ lawyers, he says that he had no idea why they
were there. Further, he was feeling ill and could not (and
would not) sit for the deposition. Evans refused to be sworn
or to answer any questions.
Thwarted in his discovery effort, Kayira moved for sanc-
tions, seeking either reimbursement for the costs of the failed
deposition or dismissal with prejudice. The district court
granted the latter sanction, citing Federal Rules of Civil Pro-
cedure 37(b) and 37(d) and finding that a sanction of costs
would be fruitless because Evans is an indigent prisoner. Alt-
hough dismissal is indeed sometimes the proper sanction for
a discovery violation, we conclude that the district court
jumped too quickly in that direction. We therefore reverse and
remand for further proceedings.
I
On April 6, 2016, Evans filed a civil rights complaint alleg-
ing that Susan Griffin and Dr. Francis Kayira, both medical
providers at Illinois’s Graham Correctional Center, exhibited
deliberate indifference to his serious medical needs, in viola-
tion of the Eighth Amendment (as applied to the states
through the Fourteenth Amendment). Evans alleged that, in
addition to his various other medical issues—which included
high blood pressure, HIV, and kidney problems necessitating
No. 17-1957 3
dialysis—he had developed nasal polyps. While Griffin and
Kayira had prescribed medication for his nasal polyps, that
medication had neither reduced the polyps nor relieved his
symptoms. This, Evans alleges, is unsurprising because out-
side physicians had stated that surgery was the only way to
cure his condition. Kayira and Griffin, however, refused to al-
low Evans to see an outside specialist for treatment or sur-
gery.
For approximately a year, discovery proceeded as sched-
uled, and the record suggests that the parties had few, if any,
discovery disputes. In its case management order, the district
court had granted the defendants “leave to depose the plain-
tiff at his place of confinement,” as Federal Rule of Civil Pro-
cedure 30(a)(2)(B) requires for depositions of incarcerated
persons. Shortly before the close of discovery, Kayira at-
tempted to take advantage of this opportunity.
On Thursday, February 16, 2017, Kayira mailed a notice to
Evans, informing him that his deposition was scheduled for
the morning of Tuesday, February 21, 2017, at Graham prison,
where Evans was incarcerated. But on Tuesday morning,
when guards brought Evans to Graham’s videoconferencing
room for the deposition, he expressed confusion about what
was happening. In both on and off-the-record conversations
with defendants’ counsel, Evans stated that he did not know
why he was in the room with defendants’ counsel. Told he
was there for his deposition, Evans protested that he did not
wish to proceed for multiple reasons, including because he
did not feel well. He also made several on-the-record state-
ments suggesting that he never received Kayira’s notice. He
said, for example, that “[i]f you hire [a court reporter], send
me a notice and let me know you’re going to be here. Don’t
4 No. 17-1957
just run up on me to this and this and this and that.” He added
that “I wish you had sent me something through the mail let-
ting me know that you [were] going to have another deposi-
tion.”
Kayira’s counsel pushed back, stating that in his estima-
tion, Evans appeared physically and mentally able to proceed,
and that he had offered to take additional breaks and to allow
Evans to review copies of the documents he had brought
along as needed. Kayira’s counsel also volunteered that he
“get[s] the same kind of playbook from inmates a lot”—mean-
ing that in his experience they often manufactured reasons
not to go forward with a deposition.
With the deposition ended before it could begin, Kayira
filed a motion for sanctions under Federal Rules of Civil Pro-
cedure 37(b) and 37(d), seeking either the costs of the deposi-
tion or dismissal of Evans’s claims with prejudice. Evans re-
sponded with a sworn statement explaining that he had been
in segregation since February 4 and did not receive the notice
of deposition until the guards passed out mail to the segre-
gated prisoners at 6:30 p.m. on February 22, 2017, the day af-
ter the attempted deposition. He reiterated that as a result of
the prison’s mail-distribution policy he “had no idea” that the
deposition was going to occur until he was brought to the vid-
eoconferencing room. The district court granted Kayira’s mo-
tion for sanctions, relying on Federal Rule of Civil Procedure
37(b), which governs failure to obey an order to provide or
permit discovery, and Rule 37(d), which concerns failing to
appear for a deposition.
No. 17-1957 5
II
We review a district court’s decision to grant sanctions, as
well as the choice of which sanctions to impose, for an abuse
of discretion. Pendell v. City of Peoria, 799 F.3d 916, 917 (7th Cir.
2015). “A lower court ‘abuses its discretion when it commits
an error of law or makes a clearly erroneous finding of fact.’”
In re Veluchamy, 879 F.3d 808, 823 (7th Cir. 2018) (quoting Kress
v. CCA of Tenn., LLC, 694 F.3d 890, 892 (7th Cir. 2012)).
A
The question before us is whether the district court cor-
rectly relied on Rules 37(b) and 37(d) for its sanctions order.
Neither part of Rule 37, we conclude, fits this situation. Rule
37(d) applies only when “a party … fails, after being served with
proper notice, to appear for that person’s deposition.” FED. R.
CIV. P. 37(d)(1)(A)(i) (emphasis added). Setting aside for a mo-
ment the question of notice, we note that we have said in the
past that this rule applies only “where a [party] literally fails
to show up for a deposition session.” Stevens v. Greyhound
Lines, Inc., 710 F.2d 1224, 1228 (7th Cir. 1983) (quoting Securi-
ties and Exch. Comm. v. Research Automation Corp., 521 F.2d 585,
588–89 (2d Cir. 1975)). Evans physically appeared for his dep-
osition (indeed, because guards brought him there, he had lit-
tle choice in the matter). The problem was a refusal to partic-
ipate, not a failure to show up. Stevens indicates that if a party
“does in fact appear physically for the taking of his deposition
but refuses to cooperate … the proper procedure is first to ob-
tain an order from the court, as authorized by Rule 37(a), di-
recting him to be sworn and testify.” Id.
Kayira argues that we have abandoned this strict interpre-
tation of Rule 37(d) in more recent cases. See Collins v. Illinois,
6 No. 17-1957
554 F.3d 693 (7th Cir. 2009). A close review of Collins, how-
ever, shows that Rule 37(d) sanctions in that case were proper
under the line drawn in Stevens. In addition to Collins’s nu-
merous other discovery abuses—including walking out of
one properly noticed deposition—there was more: the district
court left no doubt that Collins had skipped an earlier,
properly noticed, attempt to depose her. See Collins v. Illinois,
514 F. Supp. 2d 1106, 1109–10 (C.D. Ill. 2007) (discussing Col-
lins’s August 15 deposition and noting that “despite being
available, and despite having received oral notice on August
10 and written notice on August 13, the Plaintiff did not attend
the deposition or contact counsel to say that she would not
attend”).
Evans seems to have conceded that the distinction drawn
in Stevens is only dictum and not a binding holding. But even
if we were to question the functional difference between a fail-
ure physically to show up and a refusal to say a word (a dis-
tinction whose implications we do not need to explore further
in this case), sanctions could not be imposed under
Rule 37(d). As we emphasized above, that part of the rule ap-
plies only after the proposed deponent has been served with
proper notice, and, taking the facts in the light most favorable
to Evans, that was missing here. We thus reject Rule 37(d) as
a basis for the district court’s order.
Kayira fares no better under Rule 37(b). Sanctions are pos-
sible under subpart (b) of Rule 37 only when a litigant fails
“to comply with a court order” (capitalization omitted). Use
of Rule 37(b) is therefore impossible if there is no court order
in place. A party lays the predicate for Rule 37(b) sanctions by
filing a motion under Rule 37(a) seeking “an order compelling
disclosure or discovery.” FED. R. CIV. P. 37(a)(1). Only if (and
No. 17-1957 7
to the extent) the court grants that order, and then the person
subject to the order fails to comply with it, may the party seek-
ing discovery move on to Rule 37(b) and ask for sanctions. See
Stevens, 710 F.2d at 1228. Kayira skipped the essential first
step of this process, instead immediately seeking sanctions.
Perhaps recognizing this misstep, Kayira now argues that
the district court’s orders permitting him to take Evans’s dep-
osition and setting a deadline for the close of discovery are
equivalent to a motion to compel Evans’s testimony. Not so.
Neither of those orders compelled Evans to answer any ques-
tions, produce any documents, or sit for a deposition at all.
Both are form orders that the district court uses in many, if
not all, pro se prisoner cases. They serve perfectly well as case-
management and scheduling orders, but they are a far cry
from the targeted order requiring compliance with a particu-
lar discovery request contemplated by Rule 37(a). While we
do not rule out the possibility that a standard order can ever
suffice, we have no trouble saying that the orders in this case
did not.
The district court’s order permitting Evans’s deposition
stated only that “[c]ounsel for the defendants is hereby
granted leave to depose the plaintiff at his place of confine-
ment. Counsel for the defendants shall arrange the time for
the deposition.” This language, far from being an order com-
pelling Evans to do anything, is directed towards defendants’
counsel. Its language is permissive, not mandatory. The dis-
trict court’s scheduling order is similarly unhelpful. That or-
der required the parties to complete discovery by March 1,
2017. It did not direct either party to engage in any specific
course of discovery. Indeed, it required the opposite: that both
parties cease their discovery attempts by the stated date.
8 No. 17-1957
B
Though neither Rule 37(b) nor Rule 37(d) sanctions were
appropriate here, Kayira also tries to rely on the district
court’s inherent authority to impose sanctions for discovery
abuses. See Cooke v. Jackson Nat’l Life Ins. Co., 919 F.3d 1024,
1027 (7th Cir. 2019) (citing Chambers v. NASCO, Inc., 501 U.S.
32 (1991)). But the Supreme Court has cautioned that this
power “must be exercised with restraint and discretion.”
Chambers, 501 U.S. at 44. In addition, the district court’s use of
its inherent power must be grounded in factual findings sup-
ported by the record. Here, the district court made no finding
that Evans received notice, and we see no basis for such a find-
ing on this record. Without proper notice, Evans was not re-
quired to sit for what amounted to a surprise-attack deposi-
tion. See FED. R. CIV. P. 30(b)(1) (requiring “reasonable written
notice” before the taking of an oral deposition).
The evidence on this issue is one-sided, and it all points
towards Evans’s not receiving notice until after the date of the
deposition. Evans provided a sworn statement that he did not
receive timely notice. His statement is uncontradicted by any
other statements (sworn or unsworn) or documents in the rec-
ord. Kayira seemingly made no attempt to confirm whether
or when his notice was received by the prison and delivered
to Evans. Showing optimism about the postal service that may
have been unwarranted, Kayira placed the deposition notice
in the U.S. mail on Thursday for a Tuesday morning deposi-
tion; there is no indication that he used an expedited delivery
option. Even indulging in the unlikely assumption that the
prison would operate its mailroom seven days a week, Kayira
allowed only five days for this notice to traverse the prison
mail system.
No. 17-1957 9
Courts have long recognized the sluggishness of prison
mail, even going so far as to create special rules to stop delays
in that system from causing unwarranted prejudice to pris-
oner-litigants. See, e.g., Ray v. Clements, 700 F.3d 993, 1002–03
(7th Cir. 2012) (discussing the prison mailbox rule and the rea-
sons for it, including the possibility of “slow mail service”);
see also Turley v. Clendenin, No. 3:15-CV-27-NJR-DGW, 2017
WL 735581, at *2 (S.D. Ill. Feb. 24, 2017) (“Dropping an enve-
lope in the mail and assuming it will be delivered to a prisoner
three days later is patently unreasonable.”). Further, through-
out Evans’s case, a week or more often elapsed between when
he placed a document in the prison mail system and when it
was filed with the district court. See, e.g., Complaint 10, ECF
No. 1 (sent March 30, 2016, filed April 6, 2016); Plaintiff Mo-
tion for Reconsideration 9, ECF No. 31 (sent October 31, 2016,
filed November 7, 2016); Letter from Plaintiff 2, ECF No. 52
(sent March 20, 2017, filed March 29, 2017). It is thus plausible,
if not likely, that Kayira’s mailed notice did not reach Evans
before the deposition.
Even if Kayira’s notice was in Evans’s hands prior to the
deposition, it still might have been untimely if it reached him
so late that he had no time to prepare. Rule 30(b)(1)’s “reason-
able written notice” requirement is designed to ensure that a
deponent has the opportunity to prepare adequately for her
deposition. In some cases, where the facts are simple or the
parties are clearly prepared, notice of even one day may be
reasonable. See, e.g., Radio Corp. of Am. v. Rauland Corp., 21
F.R.D. 113, 114–15 (N.D. Ill. 1957) (one-day notice not unrea-
sonable where the relevant parties and counsel were all in the
same city and already taking other depositions). But that is
not the situation here. This was not a case where Evans could
draw solely on his own memories to answer counsel’s
10 No. 17-1957
questions. There were numerous documents for Evans to re-
view, and it was reasonable for him to expect to be questioned
about them; Kayira’s counsel brought them to the deposition
for exactly that purpose. Yet there was no guarantee that Ev-
ans would have immediate access to these documents while
incarcerated. To the contrary, Evans has alleged that he does
not have immediate access to his legal documents. This prep-
aration time is essential, because a deposition is a major event
in the life of a case. Both courts and juries can, and regularly
do, disregard a party’s later statements that contradict earlier
deposition testimony. See, e.g., Bank of Illinois v. Allied Signal
Safety Restraint Sys., 75 F.3d 1162, 1167 (7th Cir. 1996) (“We
have long followed the rule that parties cannot thwart the
purposes of Rule 56 by creating ‘sham’ issues of fact with af-
fidavits that contradict their prior depositions.”).
But we do not have to decide whether a day, or two or
three, of preparation time would have been sufficient for Ev-
ans because, as defense counsel conceded at oral argument,
Evans was entitled at least to actual notice. See FED. R. CIV. P.
30(b)(1) (“A party who wants to depose a person by oral ques-
tions must give reasonable written notice to every other
party.”). And there is no evidence in the record that Evans re-
ceived any notice before the deposition occurred. Evans’s
sworn statement to that effect is bolstered by his confusion
upon entering the room and his prompt objection that he
wished he had received notice. The short time that Kayira
budgeted for the notice to navigate the prison mail system
also supports Evans’s position. In response, Kayira offers only
vague speculation that prisoners in other cases have, in his
counsel’s opinion, used the excuse of being sick to avoid being
deposed. This speculation based on experiences with other
imprisoned litigants cannot tip the balance away from
No. 17-1957 11
Evans’s sworn statement and unsworn complaints during the
deposition.
III
Dismissing a case with prejudice is one of the harshest
sanctions a court can impose, and so courts must be especially
careful before taking that step. Even in the case of an indigent
prisoner for whom a high-dollar fine might be inappropriate,
other sanctions, including those listed in Federal Rule of Civil
Procedure 37(b)(2), are available: for example, a warning from
the court, a small financial sanction, taking certain facts to be
established in favor of the party that secured an order com-
pelling discovery, or dismissal without prejudice. One of
these will often be enough to deter and punish misconduct.
And the gravity of the misconduct must always inform the
choice of sanction. Here, the district court went too far by dis-
missing Evans’s case with prejudice for the assumed discov-
ery violation. We therefore REVERSE the judgment of the dis-
trict court and REMAND this case for further proceedings.