United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 14, 2018*

Decided February 22, 2018

Before

WILLIAM J. BAUER, Circuit Judge

DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 17-1272

HENRY LEE NELSON,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District 

Court for the Southern District of Indiana, 

Terre Haute Division.

No. 2:15-cv-00396-LJM-MJD

Larry J. McKinney,

Judge.

O R D E R

The district court dismissed federal prisoner Henry Nelson’s tort suit against the 

government for his refusal to comply with two court orders. See FED. R. CIV. P. 41(b). On 

appeal Nelson argues generally that dismissal was inappropriate and that he was 

unable to comply with one of the orders, but he is incorrect on both points. Because the 

district judge twice warned Nelson that noncompliance could result in dismissal and 

assessed a proportionate sanction, we affirm the judgment.

 

* We 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. FED. R. APP. P. 34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 17-1272 Page 2

Nelson alleges that a guard at the federal prison in Terre Haute, Indiana, 

slammed him to the ground, causing him pain in his neck, back, and elbow. He filed 

suit against the United States in November 2015 and proceeded under the Federal Tort 

Claims Act, 28 U.S.C. § 2674. District Judge Magnus-Stinson (who was originally 

assigned to the case) issued a scheduling order that set a deadline for the parties’ 

mandatory initial disclosures. See FED. R. CIV. P. 26(a)(1)(A). Instead of disclosing the 

required information to the government, Nelson filed a document titled “Motion for 

Entry Setting Pretrial Schedule” in which he said he was “providing the only evidence 

that[] I have to prove my claim for the assault and injuries I suffer.” (It appears he 

meant that he was identifying the evidence he wanted, not “providing” it.) The only 

evidence, he said, consisted of video footage of the incident. He explained that he 

believed this video existed but was in the government’s possession, and he said he had 

requested it in discovery. 

The government served Nelson with interrogatories and requests for production 

of documents on May 13, 2016. The interrogatories asked Nelson to explain the incident, 

identify the employee who assailed him, explain the injuries suffered and the 

calculation of damages, and list the witnesses he intended to call. The documents the 

government requested consisted of those that Nelson might introduce at trial or a 

deposition, any statement from a person with knowledge of the incident, and papers 

related to his claim that the defendant caused him damages. His responses were due 

within 30 days of service, id. R. 33(b)(2) (interrogatories); id. R. 34(b)(2)(A) (document 

requests), but Nelson did not respond. The government sent Nelson letters seeking a 

response on June 22 and again on July 11. Nelson never replied. 

On August 22, 2016, the government moved to compel Nelson’s discovery 

responses, and Nelson filed nothing in opposition. The judge granted the motion and 

ordered him to submit discovery responses by October 21, 2016. The judge warned that 

failure to timely comply could result in dismissal of the action “for failure to prosecute 

and failure to follow a [c]ourt order.” Nelson, instead of sending discovery responses to 

the government, filed a document in which he asserted: “THE[] ONLY DISCOVERY IS 

THE VIDEO TAPE FOOTAGE[] IN THE CUSTODY, CARE & CONTROL OF THE 

DEFENDANTS.” The judge directed the government to treat this filing as a discovery 

request under Rule 34 of the Federal Rules of Civil Procedure. The government 

provided a video of the postincident medical assessment of Nelson and a second video 

of staff discussing their involvement with the incident; it denied having any footage of 

the incident itself. 
No. 17-1272 Page 3

On October 31, ten days after the discovery-order deadline, the government 

moved to dismiss the case as a discovery sanction. See FED. R. CIV. P. 37(b), (d). Instead 

of opposing the motion, Nelson purported to move for default judgment. On 

December 7 the judge (now Judge McKinney) denied Nelson’s motion and ordered him 

to respond to the pending motion to dismiss by explaining “the steps he had taken to 

respond to the [government’s] discovery requests.” The order cautioned that failure to 

respond “will result in dismissal of this action without further warning.” Nelson was 

given until December 27 to comply, but he did not file a response. Instead he filed two 

more motions to compel production of the incident footage.

Weeks after the extended filing deadline, the judge granted the government’s

unopposed motion and dismissed Nelson’s action with prejudice. The judge, 

mistakenly it seems, characterized the government’s Rule 37 motion as seeking 

dismissal for failure to prosecute and in granting it invoked Rule 41(b) of the Federal 

Rules of Civil Procedure. Rule 41(b) provides: “If the plaintiff fails to prosecute or to 

comply with ... a court order, a defendant may move to dismiss the action or any claim 

against it.” The judge said dismissal was warranted by Nelson’s refusal to participate in 

discovery and disregard of the court’s orders; namely, the two orders that compelled

his responses to discovery requests and the dismissal motion, despite the warnings in 

both orders. The judge said Nelson’s filings showed that he had received the two

orders, understood them, and had chosen not to respond because he “intend[ed] to 

participate in the litigation only on his own terms.” Nelson appeals. 

As a threshold matter, we must clarify some confusion over what sanctioning 

authority the judge relied upon in dismissing Nelson’s suit. As noted, the judge 

ostensibly dismissed the action under Rule 41(b), saying he granted the government’s 

motion to dismiss for failure to prosecute, but that motion and the government’s

briefing advocated for dismissal exclusively under Rule 37 based on Nelson’s refusal to 

participate in discovery. And the text of Rule 41(b) permits a defendant to file a motion 

to dismiss but does not empower the district court to do so sua sponte. Nevertheless, this 

confusion does not affect whether dismissal ultimately was appropriate because even in 

the absence of a Rule 41(b) motion, as here, district courts possess inherent authority to 

dismiss a suit for the plaintiff’s lack of prosecution or refusal to comply with court 

orders. Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962); James v. McDonald's Corp., 

417 F.3d 672, 681 (7th Cir. 2005); see also Pendell v. City of Peoria, 799 F.3d 916, 917 (7th 

Cir. 2015) (affirming the dismissal of a suit where the district judge purported to grant

the defense motion under Rule 37 based on the plaintiff violating the order to appear 

for her deposition but dismissed the case for failure to prosecute). We therefore
No. 17-1272 Page 4

consider whether the district court properly exercised its inherent authority, reviewing 

the decision to impose the sanction of dismissal for abuse of discretion. James, 417 F.3d

at 681.

On appeal Nelson asserts that he was unable to comply with the discovery order

because he did not possess the “discovery” sought in the interrogatories and document 

requests. But Nelson was able to respond to these discovery requests. To answer the 

interrogatories he simply needed to describe, to the best of his ability, the incident, the 

employee who assailed him, his injuries, and calculation of damages, and to list any

witnesses he intended to call. The document requests also called for simple disclosures, 

and Nelson could have answered that he had no relevant documents. See FED. R. CIV.

P. 34(b)(2). Nelson maintains that the government possessed the only evidence related 

to his claim, but even if that were true, he was obligated by the court’s order at least to 

respond to the discovery requests with what information he had. Therefore, the record 

supports the district judge’s determination that Nelson was able to comply with the

discovery order but chose not to do so. 

Nelson also argues, without attacking any specific aspect of the judge’s analysis, 

that dismissal was otherwise inappropriate. Whether dismissal is a proper sanction for 

a plaintiff’s failure to prosecute “depends on all the circumstances of the case,” Kasalo v. 

Harris & Harris, Ltd., 656 F.3d 557, 561 (7th Cir. 2011), including “the plaintiff’s pattern 

of and personal responsibility for violating orders, the prejudice to others from that 

noncompliance, the possible efficacy of lesser sanctions, and any demonstrated merit to 

the suit,” Pendell, 799 F.3d at 917; Ball v. City of Chicago, 2 F.3d 752, 759–60 (7th Cir. 

1993). The sanction of dismissal is appropriate only if it is proportionate to the 

misconduct. See Kenneth Nelson v. Schultz, 878 F.3d 236, 238–39 (7th Cir. 2017) (observing 

that proportionality is required under both Rule 37 and Rule 41(b) (citing Johnson v. Chi.

Bd. of Educ., 718 F.3d 731, 732–33 (7th Cir. 2013)).

The judge did not abuse his discretion by terminating Nelson’s suit. First, the 

judge properly considered Nelson’s personal responsibility for violating the discovery 

order and the December 7 order, despite the warnings in each order that his 

noncompliance risked dismissal. Second, the judge reasonably found that the 

government was prejudiced by having to defend the suit without discovery from 

Nelson. Third, the judge justifiably concluded that any lesser sanction would be 

ineffective in light of Nelson’s steadfast disregard of the court’s orders and his obstinate 

insistence that the government possessed the only evidence supporting his claim;

progressive discipline need not precede dismissal if, as here, the offending party was 
No. 17-1272 Page 5

warned of dismissal and termination appears to be the only effective sanction. McInnis 

v. Duncan, 697 F.3d 661, 665 (7th Cir. 2012). Lastly, the judge said he was uncertain 

about the merit of Nelson’s suit but regardless his “likelihood of success” was low; 

evidence supporting his claim would not be considered in light of his refusal to 

participate in discovery. This is a slightly different inquiry than whether a claim has 

merit—the imposition of discovery sanctions, though it may foreclose success in 

litigation, says nothing about the merit of the underlying claim. In recommending that 

judges consider the merit of a claim before dismissing it, we are concerned with the 

possibility of allowing a culpable defendant to escape accountability for past wrongs

and needlessly extinguishing the plaintiff’s claim. See Ball, 2 F.3d at 758–59. In any case, 

the judge’s analysis of the other circumstances related to proportionality led him to a

sanction that fits Nelson’s misconduct. See Kenneth Nelson, 878 F.3d at 239 (affirming

dismissal as a sanction where the judge did not consider the suit’s merit but otherwise 

assessed the proportionality of terminating the suit).

Accordingly, the judgment is AFFIRMED.