# 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 L EE 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
, J udge

.

O R D E R

The district court dismissed f ederal prisoner Henry Nelson ’s tort suit against the government for his refusal to comply with two court orders

. See F ED

. R. C IV

. 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 point s

. 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 th is 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). NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 17

- 1272 Page 2

Nelson alleges that a guard at the federal prison in Terr e Haute, Indiana, slammed him to the grou nd
, 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 F ED

. R. C IV

. P. 26(a)(1)(A). Instead of disclosing th e required information to the government , Nelson filed a document titled “Motion for Entry Setting Pretri al Schedule” in which he said he was “providing the only evidence that[] I have to prove my claim for the assault and in juries 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 . H e 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 request s for productio n 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. H is response s w ere 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

. T he government sent Nelson letters seeking a
response on June 22 and again on July 11

. Nelson never replied

.

On August 22, 2016, t he government moved to compel Nelson’s discovery
responses , and Nelson filed nothing in oppos ition. T he judge granted the motion and ordered him to submit discovery responses by October 21, 2016. The judge warned that failure to timely co mply could result in dismissal of the action “for failure to prosecute and failure to follow a [c] ourt order

. ” Nelson, instead of sending discovery response s 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 t his filing as a discovery request under Rule 34 of the F ederal R ule s of C ivil P rocedure . T he government provided a v ideo 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 governm ent moved to dismiss the case as a discovery sanction

. See F ED

. R. C IV

. P. 37 (b), (d). I nstead 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 explain ing “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
g iven until December 27 to comply , but he did not file a response

. I nstead he filed two

more motion s to compel production of the incident footage

.

W eeks after the extended filing deadline, the judge granted the government’s unopposed motion and dismissed N elson’s action with prejudice. T he 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 compell ed his response s to discovery request s and the dismissal motion , despite the warnings in both orders

. The judge said Nelson’s filin gs showed that he had received the two orders, understood them, and had chose n 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 dismiss ing 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 th at motion and the government’s briefing advocated for dismissal exclusively under Rule 37 based on Nelson’s ref usal 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 appropri ate because even in the absence of a Rule 41(b) motion, as here, d istrict courts possess inherent authority to dismi ss 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 th e plaintiff violating the ord er to appear for her deposition but dismissed the case for failure to prosecute ). We thereforeNo. 17

- 1272 Page 4

consider whether the district court properly exercised its inherent authority , reviewing the decision to impose the sanction of dism issal for abuse of discretion

. James , 417 F.3d

at 681

. On appeal Nelson asserts that he was unable to comply with the discovery order b ecause he did not possess the “discovery ” sought in the interrogatories and document request s

. But Nelson was able to respond to the se dis c overy request s

. To answer the interrogatories he simply needed to describ e , 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 ca ll. T he document request s also called for simple disclosures
, and Nelson could have answered that he had no relevant documents

. See F ED

. R. C IV

. 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 d iscovery 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. W hether dismissal is a proper sanction for a plaintiff’s failure to prosecute “depends on all the circumsta nces 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 Ch i cago , 2 F.3d 752, 759

– 60 (7th Cir. 1993). The sanction of dismissal is appropriate only if it is proportiona te 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) )

.

T he judge did not abuse his discretion by terminating Nelson’s suit. First, the judge properly consider ed Nelson’s personal responsibility for violating the discovery order and the December 7 order
, despite the warnings in each order th at 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 conclu ded that any lesser sanction would be
in effective 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 disc ipline need not precede dismissal if, as here, the offending party wasNo. 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 me rit 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

. T his is a slightly different inquiry than whether a claim has
merit

— t he imposition of discovery sanctions, though it may foreclose succes s 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.