FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 07, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-14516

Non-Argument Calendar

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D. C. Docket No. 08-00174-CV-BAE-4

NOEL ROMERO DOYE,

Plaintiff-Appellant,

versus

JASON COLVIN,

Sheriff Deputy,

CAPTAIN BRUCE DUNCAN,

Assistant Administrator, et al.,

Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Georgia

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(May 7, 2010)

Before EDMONDSON, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
Noel Romero Doye appeals pro se the district court’s dismissal of his 42

U.S.C. § 1983 lawsuit against prison officials for their alleged physical abuse and

medical neglect. The district court dismissed his suit pursuant to Rules 37(b) and

41(b) of the Federal Rules of Civil Procedure for Doye’s refusal to submit to a

deposition. On appeal, Doye raises two issues. First, Doye contends the district

court failed to make a de novo review of the record before adopting the magistrate

judge’s report and recommendation stating the complaint should be dismissed.

Second, Doye asserts the district court erred in dismissing the complaint because

his refusal to submit to the deposition was not a willful or bad faith violation of

any discovery order and thus, dismissal was unwarranted under Rules 37 and 41.

Upon review, we conclude the district court erred in dismissing Doye’s complaint

and vacate and remand for further proceedings.

I.

Doye first contends the district court failed to conduct a de novo review of

the record prior to adopting the magistrate judge’s report and recommendation. A

district court may request the report and recommendation of a magistrate judge on

certain pre-trial motions pending before the court. See 28 U.S.C. § 636(b). If a

party objects to any portion of the magistrate judge’s report and recommendation,

the district court judge must “make a de novo determination of those portions of

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the report or specified proposed findings or recommendations to which objection is

made,” before adopting or rejecting the report and recommendation. 28 U.S.C.

§ 636(b)(1). The district court’s de novo review must include an “independent

consideration of factual issues based on the record.” Diaz v. United States, 930

F.2d 832, 836 (11th Cir. 1991).

In its order adopting the magistrate judge’s report and recommendation and

dismissing Doye’s § 1983 suit, the district court specifically stated it had

conducted “a careful de novo review of the record in this case.” Doye has

presented no evidence that leads us to question the veracity of the district court’s

statement or causes us to conclude the district court violated § 636(b) in adopting

the magistrate judge’s report and recommendation.

II.

Doye next contends the district court erred in sanctioning him with the

dismissal of his complaint, because the defendants’ attorney did not provide Doye

with proper notice of the deposition to which Doye declined to submit. Federal

Rule of Civil Procedure 37(b) provides a district court with authority to impose

sanctions, including dismissal of suit, on a party for failing to comply with a

discovery order. Fed. R. Civ. P. 37(b). Likewise, Rule 41(b) allows a defendant to

move for involuntary dismissal if the plaintiff fails to comply with a court order.

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Fed. R. Civ. P. 41(b). The “trial court’s discretion regarding discovery sanctions is

not unbridled,” however, as we have “consistently held” that “dismissal is justified

only in extreme circumstances and as a last resort.” Wouters v. Martin County,

Fla., 9 F.3d 924, 933 (11th Cir. 1993) (discussing Rule 37(b) dismissal); Goforth

v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985) (discussing the hesitancy a court

should have in dismissing a case pursuant to Rule 41(b)).

When a district court dismisses a plaintiff’s complaint as a discovery

sanction under Rules 37 and 41, we review for abuse of discretion and to ensure

“that the findings of the trial court are fully supported by the record.” See

BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1048 (11th Cir.

1994) (quotations and citations omitted) (discussing dismissal pursuant to Rule

37); Goforth, 766 F.2d at 1535 (reviewing dismissal under Rule 41). An abuse of

discretion “occurs if the court fails to apply the proper legal standard or to follow

proper procedures in making the determination,” or if the court relies on “clearly

erroneous” facts. See Gray ex rel. Alexander v. Bostic, 570 F.3d 1321, 1324 (11th

Cir. 2009) (quotation omitted) (addressing an award of attorney’s fees).

Because it is such a drastic sanction, before dismissing a lawsuit pursuant to

either Rule 37 or 41, a district court must first find (1) the plaintiff’s failure to

comply with relevant order was willful or in bad faith; and (2) lesser sanctions

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would not suffice. See Wouters, 9 F.3d 933–34 (reversing Rule 37(b) dismissal);

Goforth, 766 F.2d at 1535 (discussing prerequisites to a Rule 41(b) dismissal).

The district court is not required to explicitly state its consideration of lesser

sanctions before dismissing the suit if the record “clearly demonstrates” that the

sanctionee “deliberately and defiantly refused to comply with” the court’s

discovery orders. Phipps v. Blakeney, 8 F.3d 788, 790–91 (11th Cir. 1993).

Nevertheless, we have noted that in some “close cases,” the district court’s “failure

to explain why a lesser sanction was not used may result . . . in a reversal or

vacation of an order of dismissal.” Id. at 791.

We conclude the district court’s dismissal of Doye’s complaint was not

supported by the findings or analysis required by our precedent. First, the record

in this case does not support the finding that Doye willfully or in bad faith refused

to comply with the discovery order in question. Second, the magistrate judge’s

report and recommendation, adopted by the district court, appears to have omitted

any consideration of whether, had Doye’s conduct been willful, lesser sanctions

would have sufficed to achieve the goals of Rules 37 and 41.

The district court entered an order stating defendants could depose Doye “as

noticed prior to June 22, 2009.” Rule 30 of the Federal Rules of Civil Procedure

requires that a party seeking to depose someone provide reasonable written notice

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to every other party of, inter alia, the time and place of the deposition. Fed. R.

Civ. P. 30(b)(1). Originally, defendants sought to depose Doye on May 29, 2009.

Defendants provided Doye with notice, and Doye prepared himself for that

deposition. Defense counsel, however, failed to show up at Doye’s correctional

facility for the scheduled deposition. The day of the missed deposition, defense

counsel mailed notice that he was rescheduling the deposition for June 3, 2009.

Thus, notice was mailed to Doye only four days prior to the date of the newly

proposed deposition date. Doye claims not to have received notice, and there is no

evidence on record suggesting to the contrary. In fact, defendants admit that four

days was insufficient “to have supplied Doye with advance written notice, given

the constraints of the United States Postal Service and the prison’s mail system.”

Doye claims that when defense counsel arrived at his prison on June 3, he

did not submit to the deposition because he was not mentally or medically prepared

to be deposed. He claims he was not disobeying the court’s discovery order

willfully or in bad faith by refusing to be deposed, because he believed he had a

right to proper notice.

The magistrate judge’s report and recommendation rejects Doye’s

contention that he did not receive notice, citing the May 29 mailing which

defendants themselves concede was unlikely to have reached Doye prior to June 3.

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The magistrate judge then entirely dismisses the issue of whether Doye received

actual notice of the rescheduling, stating it “ha[d] little bearing on this case,”

because Doye was “prepared for the deposition on May 29, and, as a prisoner, he

had no scheduling conflicts that prevented his appearance [on the 3rd].” Rule 30

however, does not contain an exception to the notice requirement merely because

the intended deponent is a prisoner.

Later, the district court judge, in granting Doye’s petition to proceed in

forma pauperis in the present appeal, acknowledged “the Court did not inquire into

whether [Doye] had actual notice of the deposition” and that if Doye never

received notice, “then he did nothing wrong by refusing to be deposed.” We

conclude there is nothing in the record that supports the proposition that Doye had

actual notice his deposition had been rescheduled and thus nothing to support the

finding that Doye’s refusal to submit to the June 3 deposition was willful or bad

faith violation of a discovery order. We, therefore, hold the dismissal of his

complaint as a sanction for that refusal was an abuse of discretion.

Further, the adopted report and recommendation did not discuss whether

lesser sanctions would have been appropriate, even had Doye’s refusal to be

deposed been a willful or bad faith violation. Rather, the magistrate judge states

merely that “willfulness is a relevant consideration” in determining whether lesser

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sanctions are appropriate. As explained above, however, precedent requires courts

engage in a two-step analysis prior to dismissing a complaint for the violation of a

discovery order: the court first determines if the violation was willful or in bad

faith, next it determines whether lesser sanctions would suffice. This is not a case

in which the evidence of willful disobedience renders superfluous explicit analysis

of lesser sanctions, such as the lesser sanction requested by the defendants as an

alternative to dismissal of the suit: a court order compelling Doye to submit to the

deposition. In conflating the two prerequisite analytical steps to dismissal of the

suit, the adopted report and recommendation erred.

Based on the aforementioned bases, we vacate the district court’s dismissal

of Doye’s 42 U.S.C. § 1983 suit and remand for further proceedings.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

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