[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 13954 Non

- Argument Calendar

________________________ D.C. Docket No. 1:14

- cv
- 23204

- JLK

NAJIB MALIK,
Plaintiff

- Appellant,

versus WEXFORD HEALTH SERVICES, I NC., Defendant, DORA GAXIOLA, Chief Health Officer at Everglades Correctional Institution who superseded in the place of Carl Balmir, OSC AR ORTEGA, Medical Doctor at Everglades Correctional Institution, MARIA LOUISSAINT, A.R.N.P., at Everglades Correctional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, Wexfor d Health Serv. Inc., et al.,
Defendants

- Appellees.

Case: 17-13954 Date Filed: 02/14/2019 Page: 1 of 72 _______________________ Appeal from the United States District Court for the Southern District of Florida

________________________ (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 u nder 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, includi ng dismissal of the action in whole or in part. See Tobinick v. Novella , 848 F.3d 935, 949 (11th Cir.), cert. denied , 138

Case: 17-13954 Date Filed: 02/14/2019 Page: 2 of 73 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 , 6 9 1 F.2d
at 481

. In reviewing the district court’s decision, we consider “whether a less drastic but equally effec tive 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 ab used its discretion in dismissing the action .” Id . at 48 1. 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

- ple ade d complaint, Malik fail ed 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 , Mali k 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? Case: 17-13954 Date Filed: 02/14/2019 Page: 3 of 74 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 g oing to answer that, ma’am.
Soon a fter these re sponses , Malik began complain ing that he was experiencing chest tightness and informed counsel that he was “burning up with a fever

. ”
C ounsel then ended the deposition.
After the failed deposition, t he defendants moved to dismiss the case for Malik’s failure to participate in discovery. In support of th eir motion, the
defendants provided an affidavit by Dr. Maier, a Florida Department of
Corrections physician , stat ing that Malik’s medical records showed that, a lthough
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.

Case: 17-13954 Date Filed: 02/14/2019 Page: 4 of 75 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 th at 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 th is action but only to whether the
district court abused its discretion in so doing

. The record in this case d oes 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 dis covery process
. ” Aztec Steel , 6 9 1 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 t his argument as challenging the denial of his motion for reconsideration for newly discovered evidence. United States v. Hung Thie n 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. ” ).

Case: 17-13954 Date Filed: 02/14/2019 Page: 5 of 76 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). T o 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).
T he 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 suppo rted 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 , n or did he produce any document s showi ng that he had kidney failure. 2 Accordingly, Malik d id 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 th e 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 sancti ons 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.”).

Case: 17-13954 Date Filed: 02/14/2019 Page: 6 of 77 change the outcome of the case and the district court did not abuse its discretion in denying his motion.
AFFIRME D. Case: 17-13954 Date Filed: 02/14/2019 Page: 7 of 7