[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-13954

Non-Argument Calendar

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D.C. Docket No. 1:14-cv-23204-JLK

NAJIB MALIK, 

 Plaintiff-Appellant,

 versus

WEXFORD HEALTH SERVICES, INC.,

 Defendant,

DORA GAXIOLA, 

Chief Health Officer at Everglades Correctional Institution

who superseded in the place of Carl Balmir,

OSCAR ORTEGA, 

Medical Doctor at Everglades Correctional Institution,

MARIA LOUISSAINT,

A.R.N.P., at Everglades Correctional Institution, 

RICK ROWE, 

Everglades Correctional Institution, sued in their individual and official capacity,

DANIEL L. CONN, 

Wexford Health Serv. Inc., et al.,

 Defendants-Appellees.

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_______________________

Appeal from the United States District Court

for the Southern District of Florida

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(February 14, 2019)

Before MARTIN, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM: 

Najib Malik, a Florida prisoner proceeding pro se, appeals the district 

court’s dismissal of his complaint with prejudice and denial of his Fed. R. Civ. P. 

60 motion for reconsideration. First, he argues that the district court abused its 

discretion in dismissing his complaint for his failure to participate in his deposition

because he did not act in bad faith. Second, he contends that the district court 

abused its discretion in denying his motion for reconsideration because he showed 

that he had kidney failure and was not feigning illness at his deposition. Finding 

no abuse of discretion by the district court, we affirm. 

I

We review a district court’s dismissal under Fed. R. Civ. P. 37(b) for abuse 

of discretion. See Aztec Steel Co. v. Fla. Steel Corp., 691 F.2d 480, 481 (11th Cir. 

1982). If a party fails to obey an order to provide or permit discovery, a district 

court may impose a variety of penalties, including dismissal of the action in whole 

or in part. See Tobinick v. Novella, 848 F.3d 935, 949 (11th Cir.), cert. denied, 138 

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S. Ct. 449 (2017); Fed. R. Civ. P. 37(b). A district court may dismiss an action

when a party displays “willfulness, bad faith[,] or disregard of responsibilities” or 

“flagrant disregard for the court and the discovery process.” Aztec Steel, 691 F.2d 

at 481. In reviewing the district court’s decision, we consider “whether a less 

drastic but equally effective remedy could have been fashioned.” Id. at 481–82. 

That being said, “[t]he standard of review for a Rule 37(b) dismissal is not whether 

the reviewing court would, as an original matter, have dismissed the action; it is 

whether the district court abused its discretion in dismissing the action.” Id. at 481.

Here, the district court did not abuse its discretion in dismissing Malik’s 

complaint with prejudice. After the court allowed Malik two years and four 

attempts to file a properly-pleaded complaint, Malik failed to meaningfully 

participate in his deposition, even after the district court warned him that his failure 

to do so could “result in the imposition of sanctions, including dismissal of [his] 

action.” Specifically, Malik refused to answer counsel’s questions early in the 

deposition, including in the following exchanges:

Stinson: Is Defendant’s Exhibit Number 40 a refusal of all 

medical services? 

Malik: I’m not going to answer no more about this refusal, 

please. You need to move onto something else. 

* * *

Stinson: Is Defendant’s Exhibit Number 41 a refusal of an 

increase or change of hypertension medication?

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Malik: I’m not going to answer that. 

Stinson: This will be the last time that I ask you this question,

Mr. Malik? 

Malik: Yes, ma’am. 

Stinson: For the third time, is Defendant’s Exhibit Number 

41 a refusal of an increase or change of hypertension 

medication?

Malik: No, I’m not going to answer that, ma’am. 

Soon after these responses, Malik began complaining that he was experiencing 

chest tightness and informed counsel that he was “burning up with a fever.” 

Counsel then ended the deposition.

After the failed deposition, the defendants moved to dismiss the case for 

Malik’s failure to participate in discovery. In support of their motion, the 

defendants provided an affidavit by Dr. Maier, a Florida Department of 

Corrections physician, stating that Malik’s medical records showed that, although 

he had reported to the nurse on the morning of his deposition, his vital signs had 

been normal and there were no signs of respiratory distress or fever. Dr. Maier 

also stated that, although Malik complained of various medical conditions in the 

days following the deposition, his vital signs were consistently normal and he did 

not have a temperature. 

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The magistrate judge determined that, given Malik’s initial resistance to the 

deposition and his subsequent behavior at the deposition, he had attempted “to 

derail the Defendants’ efforts to conduct discovery and prepare the case for 

dispositive resolution” and “to hinder and/or otherwise impede the discovery 

process.” The magistrate judge recommended that the case be dismissed under 

Fed. R. Civ. P. 37, and the district court agreed. 

Although dismissal is a harsh remedy, our review does not extend to whether 

we would, as an original matter, have dismissed this action but only to whether the 

district court abused its discretion in so doing. The record in this case does not 

indicate that the district court abused its discretion in determining that, by refusing 

to cooperate in his deposition, Malik displayed “flagrant disregard for the court and 

the discovery process.” Aztec Steel, 691 F.2d at 481. Accordingly, we affirm as 

to this claim.

II

We also review the denial of a Fed. R. Civ. P. 60 motion for relief from 

judgment for abuse of discretion.1

 Kolawole v. Sellers, 863 F.3d 1361, 1366 (11th 

 1

 Although Malik’s brief does not clearly challenge the district court’s denial of his motion for 

reconsideration, it does argue that the district court should not have dismissed the case because 

of his (later-discovered) kidney problems. We liberally construe this argument as challenging 

the denial of his motion for reconsideration for newly discovered evidence. United States v. 

Hung Thien Ly, 646 F.3d 1307, 1316 (11th Cir. 2011) (“[W]e read pro se briefs liberally to 

ensure that such litigants do not, through their ignorance of legal terminology, waive claims.”).

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Cir. 2017). Rule 60 provides that a district court may relieve a party from a final 

judgment for, among other things, newly discovered evidence. See Fed. R. Civ. P. 

60(b)(2). To obtain relief on this ground, a plaintiff must show that: (1) the

evidence is newly discovered; (2) he exercised due diligence to discover the 

evidence; (3) the evidence is not merely cumulative or impeaching; (4) the 

evidence is material; and (5) the evidence would likely change the outcome. See

Waddell v. Hendry Cty. Sheriff’s Office, 329 F.3d 1300, 1309 (11th Cir. 2003). 

The district court did not abuse its discretion in denying Malik’s motion for 

reconsideration. Malik’s objection to the magistrate judge’s Report and 

Recommendation was supported only by his bare allegation that he had recently 

been diagnosed with kidney failure. Although Malik attached lab results with 

certain numbers circled to his objections, he did not in any way explain the 

numbers, nor did he produce any documents showing that he had kidney failure.2

 

Accordingly, Malik did not demonstrate that the evidence was material or would 

 2 Malik also argues that the district court abused its discretion in imposing monetary sanctions 

against him because he was indigent and did not have the ability to pay. Because Malik did not 

object to the defendants’ motion for monetary sanctions before the district court and raises this 

issue for the first time on appeal, this argument is likely abandoned. See Access Now, Inc. v. Sw. 

Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). In any event, our precedent does not 

prohibit the imposition of sanctions against a pro se litigant proceeding in forma pauperis. See, 

e.g., Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (“If a pro se litigant ignores a 

discovery order, he is and should be subject to sanctions like any other litigant. Courts can 

assess costs and monetary sanctions against IFP litigants.”).

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change the outcome of the case and the district court did not abuse its discretion in 

denying his motion. 

AFFIRMED.

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