### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 2739

C HARLES D ONELSON

, Plaintiff

‐ Appellant

,

v.

D ARRISE H ARDY AND W EXFORD H EALTH S OURCES

, I NC

., Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 14 C 1249

— Gary Feinerman

, Judge

.

____________________ S UBMITTED J UNE 20, 2019

— D ECIDED J ULY 9, 2019

—

O PINION I SSUED J ULY 19, 2019 *

____________________

Before K ANNE

, B ARRETT

, and B RENNAN

, Circuit Judges

.

P ER C URIAM

. 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. F ED

. R. A PP

. 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 The court initially resolved this appeal by nonprecedential or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 de fi cient medical care in prison and retaliat

‐ ing against him for fi ling 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 a ffi rm.

We begin by describing Donelson’s case. Donelson, an

Illinois inmate, moved to Stateville Northern Reception and

Classi fi cation 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 indi ff erence 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 fi rst problem involved Donelson’s con fl ict 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 Plainti ff

, the Court does not credit

Plainti ff ’s allegations concerning the adequacyNo. 18

‐ 2739 3

of Wexford’s response to the discovery request

upon which Plainti ff focuses in his motion [to

compel]. It appears that the documents Plainti ff

says he did not receive are a tt ached to his mo

‐

tion to compel and identi fi ed in a delivery re

‐ ceipt

... Further, Wexford provided the Court

with copies of the documents it produced to

Plainti ff

, and they are the Wexcare documents

Plainti ff speci fi cally 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 a tt ached 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 F ED

. R. C IV

. 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 ma tt er 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 haven ʹ t fi nished my question. Before this inci

‐

dent occurred, sir, have you ever received med

‐

ical a tt ention at an Illinois Department of

Corrections prison?

A: I don ʹ t recall. I don ʹ t understand your question.

Q: When did you fi rst 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 speci fi cally.

From the date you were born, until December

30th, 2013, had you ever been at Stateville

Northern Reception and Classi fi cation Center?

A: I don ʹ t 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 don ʹ t 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

‐

fi ned. 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 the6 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 submi tt ed) from another case showed that

he could understand similar questions. Moreover, “no judi

‐

cial o ffi cer suggested to Donelson that he was free to disre

‐ gard the rules governing depositions.” And, the judge noted,

Donelson’s a tt empt 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 insu ffi ciency of

a verbal or wri tt en 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, 55No. 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 justi fi ed if the o ff ender 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

‐

fi ed by bad

‐ faith conduct, a fi nding 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 fi nding 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 fi nd 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 fi nd bad faith

without holding a hearing, but an oral hearing was not re

‐ quired. The court gave Donelson notice of the possible8 No. 18

‐ 2739

sanction and an opportunity to respond to its order to show

cause. That was su ffi cient 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. Schul tz

, 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 ine ff ec

‐

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 tra ffi cking 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 ine ff ective—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 ine ff ective because

Donelson had fi led this suit in forma pauperis; if he could not

a ff ord the fi ling 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 falsi fi ed testimony. “[F]alsifying evi

‐

dence to secure a court victory undermines the most basic

foundations of our judicial system. If successful, the e ff ort

produces an unjust result. Even if it is not successful, the e ff ort

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.