# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 13, 2014 *

Decided February 13, 2014

Before

RICHARD A. POSNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 13

‐ 2073

GEORGE JENKINS, JR.,

Plaintiff–Appellant

,

v.

KENNETH MILES, et al.

, Defendants–Appellees

. Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division.

No. 12 C 3949

Harry D. Leinenweber,

Judge

.

O R D E R NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* After examining the briefs and the record, we have concluded that oral

argument is unnecessary. Thus the appeal is submitted on the briefs and record.

See F ED

. R. A PP

. P. 34(a)(2).No. 13

‐ 2073 Page 2

George Jenkins sued two police officers and the City of Chicago under 42 U.S.C.

§ 1983 and various Illinois statutes, alleging false arrest, false imprisonment, malicious

prosecution, denial of medical care, and conspiracy. After Jenkins missed a status

hearing and twice refused to sit for a deposition, despite warnings that he must, the

district court dismissed the suit for failure to prosecute. Jenkins appeals, contending

that the dismissal was an abuse of discretion. We affirm because the district court

reasonably concluded that Jenkins’s conduct justified the dismissal.

According to Jenkins’s complaint, a fellow passenger on a bus beat him

unconscious. When the police arrived, other passengers said that Jenkins had started

the fight, and the police arrested him for simple battery. At the police station, Jenkins

asked to go to the hospital. Officers told him that hospitalization would delay his

release, so Jenkins decided to wait until he got out of jail to visit the hospital. He was

released that day, and the charge against him was later dropped.

From the start, this litigation was troubled. Early in the suit, Jenkins asked for

appointment of counsel, which the judge denied. A few months later, at a status hearing

that Jenkins missed, defense counsel complained that Jenkins was eight days late in

responding to written discovery. The judge ordered Jenkins to appear at the next status

hearing, which Jenkins did, telling the court that he had missed the earlier hearing

because for five days he was “extremely sick” and “suffering from an extreme case of

fatigue and weakness.” The judge passed over this proffered excuse and discussed

Jenkins’s tardy discovery responses; Jenkins attributed the delay to confusion about his

current address. The judge next instructed Jenkins that he had to sit for his deposition,

which had been set for later that month. Jenkins replied that he understood. He then

asked the judge to reconsider his motion for appointment of counsel, and the judge told

him to “wait until the deposition is over, and we’ll see what the case consists of.”

Despite the court’s instruction, Jenkins refused to sit for the deposition. Although

he showed up for it, a few minutes after defense counsel began the deposition, Jenkins

asked how long it would last. Counsel answered it would be “as long as it needs to be”

and that the rules allow for seven continuous hours. See F ED

. R. C IV

. P. 30(d)(1). Jenkins

replied that he refused to sit for seven hours because he had to be “somewhere else” in

under two hours. Defense counsel advised that the deposition would not be finished by

then and warned Jenkins that he would seek costs for the extra deposition session.

Jenkins responded that monetary sanctions could not affect him: “You can’t get blood

from a turnip. You can’t get blood from a rock. I’m an indigent. I am poor; I don’t have

no income.” Defense counsel asked Jenkins if he understood that his case could beNo. 13

‐ 2073 Page 3

dismissed if he failed to complete his deposition, and Jenkins said that he did. After

some back and forth, Jenkins agreed to resume his deposition two weeks later. Defense

counsel gave him notice of that deposition, and Jenkins left.

The deposition never resumed. Instead, Jenkins again moved for appointment of

counsel, offering a new reason for having left his deposition early. He told the court that

he needed a lawyer at the deposition because of the “rude and uncongenial attitude and

manner of the defendants’ attorney,” whom Jenkins accused of “gestapo tactics.” He

also thought that a seven

‐ hour deposition was unnecessary because he had attached an

affidavit to his complaint that answered most of the defendants’ potential questions.

Jenkins advised defense counsel that he would not attend the resumed deposition

without a lawyer. In response, the defendants moved to compel the deposition.

At the hearing on the defendants’ motion, Jenkins asked the judge about his

motion to appoint counsel. The judge responded that he would not consider the motion

because Jenkins had not filed the required notice of presentment. The judge then

dismissed the case for want of prosecution, citing Jenkins’s previous failure to appear

for a status hearing combined with his two refusals to sit for his deposition. Jenkins

asked the court to reconsider under Federal Rule of Civil Procedure 59(e) and renewed

his request for counsel. He argued that he could refuse to sit for his deposition because

Federal Rule of Civil Procedure 30(d)(3)(A) provides that “[a]t any time during a

deposition, the deponent or a party may move to terminate or limit it on the ground

that it is being conducted in bad faith or in a manner that unreasonably annoys,

embarrasses, or oppresses the deponent or party.” The district court denied the motion,

explaining that Jenkins’s dislike of the seven

‐ hour deposition, his untested affidavit,

and his “vague fear of ‘gestapo tactics’” did not justify disrupting the court’s docket and

wasting the defendants’ resources.

On appeal Jenkins reiterates that, because he sought counsel before the resumed

deposition out of fear that the defendants would harass him, the district court abused

its discretion in dismissing his suit. He does not contest that district courts have the

inherent authority to dismiss suits, even sua sponte, for failure to prosecute, so long as

they exercise their discretion reasonably. Link v. Wabash R.R. Co.

, 370 U.S. 626, 630–33

(1962); James v. McDonald’s Corp.

, 417 F.3d 672, 681 (7th Cir. 2005). On this record, the

district judge did not abuse his discretion. See James

, 417 F.3d at 681.

First, Jenkins twice refused to sit for his deposition, and his explanations for

doing so were inconsistent and inadequate, allowing the court to conclude that hisNo. 13

‐ 2073 Page 4

conduct was dilatory. See Fischer v. Cingular Wireless, LLC

, 446 F.3d 663, 664–65 (7th Cir.

2006); Lockhart v. Sullivan

, 925 F.2d 214, 217–18 (7th Cir. 1991). The transcript of the cut

‐

off deposition shows that he left, not because of counsel’s conduct, but merely because

he wanted to be “somewhere else” after two hours. But Rule 30(d)(1) allows for seven

straight hours. Later, when he renewed his request for counsel and again refused to sit

for his deposition, Jenkins shifted his excuse from his desire to be somewhere else to the

alleged misconduct of the defendants’ lawyer, for which he invokes Rule 30(d)(3)(A).

That rule allows a deponent to interrupt a deposition to seek court protection from

abusive questioning, and Jenkins believes that his motion for counsel served that

purpose. But the transcript offers no support for his reliance on Rule 30(d)(3)(A). The

rule requires that the deponent first object during a deposition, and Jenkins never

complained during the deposition. In any event, the transcript shows no abuse. And, as

the district court observed, Jenkins’s motion for counsel suffered from another defect

that the court could hold against him: The motion was not accompanied by a notice of

presentment, as mandated by Local Rule 5.3 of the Northern District of Illinois.

See McInnis v. Duncan

, 697 F.3d 661, 665 (7th Cir. 2012) (“As we have often reminded

litigants, even those who are pro se must follow court rules and directives.”).

Second, Jenkins received a warning, which he ignored, from defense counsel that

he had to attend his deposition or risk dismissal. The warning came after Jenkins had

already delayed the case by failing to respond to discovery, missing a status hearing,

and leaving his first deposition session early. True, the court never expressly rejected

Jenkins’s excuses that he missed the status hearing and the discovery due

‐ date because

of an illness and confusion over his address. But in dismissing this suit the court could

rely on its own admonition to Jenkins that he must attend his deposition and the

unheeded warning from the defendants that missing the resumed deposition could lead

to dismissal. See Fischer

, 446 F.3d at 666 (affirming dismissal where, among other things,

pro se plaintiff was warned by defendants’ motion that case could be dismissed if

plaintiff continued to ignore discovery deadlines).

Finally, the record supplied the district court with reason to believe that

monetary sanctions would not deter further delays. In response to opposing counsel’s

warning that he might have to pay for costs if he quit the deposition early, Jenkins

boasted that he did not care because he was judgment

‐ proof. “A plaintiff who

gratuitously imposes huge unrecoverable costs on his adversary cannot successfully

oppose dismissal on the ground that he can’t pay those costs, for then abuse of the

litigation process to harass a defendant would be undeterred.” Williams v. Adams

, 660

F.3d 263, 266 (7th Cir. 2011). Although Jenkins had not yet imposed “huge” costs, hisNo. 13

‐ 2073 Page 5

bluster suggested that no monetary sanction would deter his delays. In light of Jenkins’s

repeated and unjustified failure to sit for his deposition despite the court’s instruction

and defense counsel’s warning, and his proclaimed imperviousness to monetary

sanctions, dismissal was not an abuse of discretion. See McInnis

, 697 F.3d at 663–65

(affirming dismissal where pro se plaintiff failed to attend two hearings and was

warned of the possibility of dismissal).

AFFIRMED.