# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued November 10, 2010

Decided December 16, 2010

Before

RICHARD D. CUDAHY, Circuit Judge

DANIEL A. MANION, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 10

‐ 2366

VICTOR WATKINS,

Plaintiff

‐ Appellant

,

v.

JAMES NIELSEN,

Defendant

‐ Appellee

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 08

‐ cv

‐ 070

‐ DRH

David R. Herndon,

Chief Judge

.

O R D E R

Victor Watkins sued a prison doctor under 42 U.S.C. § 1983 while he was

incarcerated in Illinois. The district court recruited counsel to represent Watkins but

eventually dismissed the suit as a sanction for noncompliance with discovery and

scheduling orders. Because the district court did not abuse its discretion, we affirm the

judgment.

Watkins filed suit pro se, claiming that three prison employees violated the Eighth

Amendment by failing to treat his schizophrenia. Watkins alleged that the defendants

knew he had been diagnosed with schizophrenia before his incarceration, and yet they

refused to provide him with antipsychotic medication. His untreated schizophrenia, he

said, caused him to hear voices while in segregation for six months. The district court NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 10

‐ 2366 Page 2

dismissed two of the defendants at screening, see 28 U.S.C. § 1915A, but allowed the suit to

proceed against Dr. James Nielsen, a physician at the prison.

Watkins, proceeding in forma pauperis, then asked the district court to recruit a

lawyer to assist him. Watkins explained that he needed help prosecuting his case due to his

mental impairment. The district court agreed and enlisted a lawyer to represent Watkins.

Counsel entered her appearance on September 17, 2008, and continues to represent Watkins

on appeal.

In November 2008 a magistrate judge set a discovery deadline of June 19, 2009. In

April 2009, however, plaintiff’s counsel filed an unopposed motion asking to push back the

discovery deadline because until then she had not heard from Watkins since his release

from prison in February. In her motion counsel explained that Watkins had resumed

communication but she needed more time to complete discovery. After a hearing the

magistrate judge extended the deadline five months until November 19, 2009.

Shortly before that date, on November 16, 2009, the magistrate judge conducted a

telephonic conference and reviewed the status of discovery, which had stalled. The court

instructed Nielsen to tender his discovery requests and gave Watkins 30 days to comply.

Nielsen served interrogatories and a request for production of records, including medical

records, but received nothing from Watkins. Finally, in late January 2010, Nielsen filed a

motion under Federal Rule of Civil Procedure 37 to compel. The magistrate judge granted

the motion on January 27 and directed Watkins to respond within 10 days, warning him

that failing to do so could result in dismissal of his case.

Nielsen did not receive any records from Watkins. He did receive a response to his

interrogatories and request for production

. Nielsen conveyed to the magistrate judge,

however, that Watkins’s disclosures were incomplete, and at a status conference on

February 19, 2010, the court told Nielsen to identify the deficiencies and explain how his

ability to defend the suit had been prejudiced. On March 3, Nielsen faxed plaintiff’s counsel

a letter explaining the deficiencies. The letter indicates that the two had previously

discussed why Nielsen believed Watkins’s responses to discovery failed to comply with the

court’s order and informed plaintiff’s counsel that Nielsen intended to file a motion to

dismiss. Two days later Nielsen filed a motion to dismiss based on Rule 37.

Rather than cure the discovery deficiencies, Watkins filed a motion seeking more

time to conduct discovery. The magistrate judge denied this motion, reasoning that

Watkins had not established good cause for missing the discovery deadline. In a motion for

reconsideration, Watkins contended that his schizophrenia had prevented him from

maintaining contact with his lawyer and contributed to his failure to produce timely,No. 10

‐ 2366 Page 3

adequate discovery. The district court referred the motion to reconsider to the magistrate

judge, who denied it.

In his motion to dismiss, Nielsen had detailed the obvious shortcomings in

Watkins’s discovery responses. For example, in response to a general inquiry about his

medical treatment since 2000, Watkins answered that he had been hospitalized about

150 times but offered no details about when or where. Watkins responded to a specific

inquiry about treatment for injuries related to his lawsuit by stating that he had been

hospitalized several times in St. Joseph, Illinois, but Watkins did not provide dates or

identify any hospital or name any treating physician. Other answers were similarly

nonresponsive. And Watkins disclosed no information when asked to state the date, time,

and location of the incident underlying his complaint. Watkins did not explain or defend

these answers in responding to Nielsen’s motion to dismiss.

The magistrate judge recommended that the district court grant Nielsen’s motion

and dismiss Watkins’s complaint. The court noted that Watkins had gotten the discovery

deadline extended and still failed to respond to discovery requests in a timely manner. And

when he did respond, the court continued, his answers were incomplete and evasive, and

he produced no documents. The court also cited Watkins’s failure to personally attend the

final pretrial conference despite a specific order to appear. The magistrate judge concluded

that sanctions were appropriate under Rule 37(b)(2) for failure to comply with the discovery

order and under Federal Rule of Civil Procedure 16(f) for failure to comply with the

scheduling order. Although the court weighed lesser sanctions, such as fining Watkins or

barring him from introducing any undisclosed medical evidence, the court concluded that

neither alternative was sound because Watkins could not afford a fine and excluding the

medical evidence would have the same practical effect as dismissal.

Watkins filed timely objections to the magistrate judge’s recommendation, insisting

that his schizophrenia had prevented him from prosecuting his case. Plaintiff’s counsel

assured the court that finally Watkins was cooperating with her and thus the lawsuit should

be allowed to proceed. The district court adopted the magistrate’s recommendation and

addressed Watkins’s objections. The court agreed that the discovery responses were

deficient and found that Watkins had willfully violated the magistrate judge’s orders. On

May 11, 2010, the court dismissed the case with prejudice, basing its final decision only on

Rule 37, not on Rule 16.

Rule 37(b) allows dismissal of an action as a sanction if a party “fails to obey an

order to provide or permit discovery,” F ED

. R. C IV

. P. 37(b)(2)(A)(v), and this court reviews

discovery sanctions for abuse of discretion, In re Thomas Consol. Indus., Inc.

, 456 F.3d 719, 724

(7th Cir. 2006). A district court may dismiss a case as a sanction for discovery abuse if itNo. 10

‐ 2366 Page 4

finds that the party’s actions displayed willfulness, bad faith, or fault, and if dismissal

would be a proportionate response to the circumstances. Collins v. Illinois

, 554 F.3d 693, 696

(7th Cir. 2009); Melendez v. Ill. Bell Tel. Co.

, 79 F.3d 661, 672 (7th Cir. 1996).

Watkins’s challenge to the dismissal is vague. His brief does not make clear whether

he argues that the district court erred in finding that his conduct was willful, or whether

instead he contends only that the sanction of dismissal was too harsh. What is plain,

however, is that Watkins does not disagree that his discovery responses were both late and

deficient, or that he failed to appear in court when his attendance was required.

We have not resolved definitively whether a finding of willfulness must be premised

on clear and convincing evidence or simply a preponderance. In Maynard v. Nygren

, 332

F.3d 462, 468 (7th Cir. 2003), we held that the higher standard governs dismissals under

Rule 37, but later in Wade v. Soo Line R.R. Corp.

, 500 F.3d 559, 564 (7th Cir. 2007), we

questioned the correctness of that conclusion. In this case the district court found a willful

violation based on Watkins’s failure to abide by procedural rules and the magistrate judge’s

discovery orders. That finding is supported by the evidence even under the higher

standard.

A brief glance at Watkins’s interrogatory responses is enough to confirm that they

are deficient, and at oral argument plaintiff’s counsel conceded that Watkins’s delays in

providing information had led to the incomplete answers. We upheld a finding of

willfulness on similar facts in Hindmon v. National

‐ Ben Franklin Life Insurance Corporation

, where the plaintiff had “failed to properly answer defendant’s Interrogatories, and failed to

respond to defendant’s Request for Production within the time limit set by the district

court.” 677 F.2d 617, 620 (7th Cir. 1982).

Watkins also failed to produce medical records that were in his control. Under

Federal Rule of Civil Procedure 26(a)(1)(A)(ii), he should have automatically provided his

medical records which, according to the final pretrial order, he intended to use to support

his Eight Amendment claim. See Fischer v. Cingular Wireless, LLC

, 446 F.3d 663, 664

‐ 65 (7th

Cir. 2006); Williams v. Chicago Bd. of Educ.

, 155 F.3d 853, 855 (7th Cir. 1998). After failing to

produce them in compliance with Rule 26, he then violated two court orders requiring that

he turn over the documents: the order giving him 30 days after Nielsen’s request for

production and the second order giving him 10 additional days.

Incomplete or evasive responses to interrogatories can lead to dismissal of an action

under Rule 37(b). See Aura Lamp & Lighting Inc. v. Int’l Trading Corp.

, 325 F.3d 903, 909 (7th

Cir. 2003); Dotson v. Bravo

, 321 F.3d 663, 667 (7th Cir. 2003); Roland v. Salem Contract Carriers

,

811 F.2d 1175, 1179

‐ 80 (7th Cir. 1987). In Roland we upheld a district court’s dismissal underNo. 10

‐ 2366 Page 5

Rule 37 after the plaintiff missed the discovery deadline and then ignored the court’s next

order to respond. Like the appellant in Roland

, Watkins had opportunities to cure the

shortcomings. From the time of the February 19, 2010, status conference until the dismissal

in May 2010, Watkins knew that his discovery responses were woefully deficient, but he did

not try to cure the discovery violation.

Watkins contends that his failure to make proper responses did not impact Nielsen’s

ability to defend the case. Although we concluded that dismissal was too harsh in a case

where a minor error was quickly remedied, see Sherrod v. Lingle

, 223 F.3d 605, 613 (7th Cir.

2000), Watkins’s discovery failings did harm Nielsen. Watkins did not even disclose the

basic facts underlying his claim, and after 19 months of discovery, Nielsen still did not have

essential information about Watkins’s lawsuit. Without dates and names of hospitals and

physicians, Nielsen could not be expected to scour facilities across Illinois for Watkins’s

medical records.

Watkins argues that his mental illness was not considered in deciding whether

dismissal was appropriate. But the magistrate judge correctly found that Watkins’s mental

illness does not explain his failure to communicate or provide unresponsive disclosures. See

Hunt v. City of Minneapolis, Minn.

, 203 F.3d 524, 528 (8th Cir. 2000) (“Although Hunt’s PTSD

may have affected his behavior at the deposition and medical examination, it clearly was

not responsible for the vast majority of the delays caused by Hunt and his attorney.”).

Finally, Watkins contends that the district court did not consider other sanctions

before deciding that dismissal was appropriate. We disagree. The district court did

consider lesser sanctions; it contemplated both a monetary penalty and refusing to admit

the medical records. The court thus discharged whatever obligation it might have had to

consider lesser sanctions. Compare Maynard

, 332 F.3d at 468 (“[A] court can apply the

sanction of dismissal for Rule 37 violations with a finding of willfulness, bad faith or fault,

as long as it first considers and explains why lesser sanctions would be inappropriate.”),

with Dotson

, 321 F.3d at 667 (“[I]t is axiomatic that the appropriateness of lesser sanctions

need not be explored if the circumstances justify imposition of the ultimate

penalty—dismissal with prejudice.”)

. At all events, even the other sanctions contemplated

by Rule 37(b)(2)—staying further proceedings or holding Watkins in contempt—would

have been fruitless in this situation.

AFFIRMED.No. 10

‐ 2366 Page 6

Cudahy, Circuit Judge

, concurring in the judgment:

This case presents an unusual and difficult situation, because the plaintiff is

allegedly afflicted with schizophrenia, and Judge Herndon apparently sought to

accommodate this circumstance by the appointment of an experienced civil rights litigator

as plaintiff’s counsel. This effort by the presiding judge was apparently unrewarded, since

there is little evidence that appointed counsel pursued an active and effective role in

correcting the plaintiff’s deficiencies. Unfortunately, this is not an area where the record

furnishes much enlightenment, since the district court did not consider or comment on the

appointed attorney’s possible contribution to the discovery violations. We do know,

however, that Watkins’ interrogatory responses reveal that they were incomplete and

illegible and that Watkins and his attorney failed to produce medical records that the

attorney apparently possessed since June, 2009. These circumstances suggest that the

attorney did not pursue the active course that the district court might have hoped for in her

appointment.

These circumstances, even if somewhat dimly perceived, do not affect the ultimate

outcome, since the client is generally responsible for the possible failings of his attorney. See

Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P’ship

, 507 U.S. 380, 396 (1993); Salgado v.

General Motors Corp

., 150 F.3d 735, 741 (7 th Circ. 1998) ; Roland v. Salem Contract Carriers

,

811 F.2d 175, 1180 (7 th Circ. 1987); CF. Tango Music, LLC v. Deadquick Music

, 348 F.2d 294,

247

‐ 48 (7 th Cir. 2003).