JOHN EVANS, Plaintiff-Appellant, v. SUSAN GRIFFIN, et al., Defendants-Appellees.
No. 17-1957
United States Court of Appeals For the Seventh Circuit
Argued February 4, 2019 — Decided August 7, 2019
Before
Appeal from the United States District Court for the Central District of Illinois. No. 16-3093-HAB — Harold A. Baker, Judge.
WOOD, Chief Judge. John Evans is a state prisoner and, unquestionably, not a healthy man. His most recent malady is the subject of this lawsuit. Evans alleges that he developed nasal polyps and that the prison medical staff refused to authorize surgery—the only effective remedy—for him. Frustrated within the prison, he brought this suit under
Thwarted in his discovery effort, Kayira moved for sanctions, seeking either reimbursement for the costs of the failed deposition or dismissal with prejudice. The district court granted the latter sanction, citing
I
On April 6, 2016, Evans filed a civil rights complaint alleging that Susan Griffin and Dr. Francis Kayira, both medical providers at Illinois’s Graham Correctional Center, exhibited deliberate indifference to his serious medical needs, in violation of the Eighth Amendment (as applied to the states through the Fourteenth Amendment). Evans alleged that, in addition to his various other medical issues—which included high blood pressure, HIV, and kidney problems necessitating dialysis—he had developed nasal polyps. While Griffin and Kayira had prescribed medication for his nasal polyps, that medication had neither reduced the polyps nor relieved his symptoms. This, Evans alleges, is unsurprising because outside physicians had stated that surgery was the only way to cure his condition. Kayira and Griffin, however, refused to allow Evans to see an outside specialist for treatment or surgery.
For approximately a year, discovery proceeded as scheduled, and the record suggests that the parties had few, if any, discovery disputes. In its case management order, the district court had granted the defendants “leave to depose the plaintiff at his place of confinement,” as
On Thursday, February 16, 2017, Kayira mailed a notice to Evans, informing him that his deposition was scheduled for the morning of Tuesday, February 21, 2017, at Graham prison, where Evans was incarcerated. But on Tuesday morning, when guards brought Evans to Graham’s videoconferencing room for the deposition, he expressed confusion about what was happening. In both on and off-the-record conversations with defendants’ counsel, Evans stated that he did not know why he was in the room with defendants’ counsel. Told he was there for his deposition, Evans protested that he did not wish to proceed for multiple reasons, including because he did not feel well. He also made several on-the-record statements suggesting that he never received Kayira’s notice. He said, for example, that “[i]f you hire [a court reporter], send me a notice and let me know you’re going to be here. Don’t just run up on me to this and this and this and that.” He added that “I wish you had sent me something through the mail letting me know that you [were] going to have another deposition.”
Kayira’s counsel pushed back, stating that in his estimation, Evans appeared physically and mentally able to proceed, and that he had offered to take additional breaks and to allow Evans to review copies of the documents he had brought along as needed. Kayira’s counsel also volunteered that he “get[s] the same kind of playbook from inmates a lot“—meaning that in his experience they often manufactured reasons not to go forward with a deposition.
With the deposition ended before it could begin, Kayira filed a motion for sanctions under
II
We review a district court’s decision to grant sanctions, as well as the choice of which sanctions to impose, for an abuse of discretion. Pendell v. City of Peoria, 799 F.3d 916, 917 (7th Cir. 2015). “A lower court ‘abuses its discretion when it commits an error of law or makes a clearly erroneous finding of fact.‘” In re Veluchamy, 879 F.3d 808, 823 (7th Cir. 2018) (quoting Kress v. CCA of Tenn., LLC, 694 F.3d 890, 892 (7th Cir. 2012)).
A
The question before us is whether the district court correctly relied on
Kayira argues that we have abandoned this strict interpretation of
Evans seems to have conceded that the distinction drawn in Stevens is only dictum and not a binding holding. But even if we were to question the functional difference between a failure physically to show up and a refusal to say a word (a distinction whose implications we do not need to explore further in this case), sanctions could not be imposed under
Kayira fares no better under
Perhaps recognizing this misstep, Kayira now argues that the district court’s orders permitting him to take Evans’s deposition and setting a deadline for the close of discovery are equivalent to a motion to compel Evans’s testimony. Not so. Neither of those orders compelled Evans to answer any questions, produce any documents, or sit for a deposition at all. Both are form orders that the district court uses in many, if not all, pro se prisoner cases. They serve perfectly well as case management and scheduling orders, but they are a far cry from the targeted order requiring compliance with a particular discovery request contemplated by
The district court’s order permitting Evans’s deposition stated only that “[c]ounsel for the defendants is hereby granted leave to depose the plaintiff at his place of confinement. Counsel for the defendants shall arrange the time for the deposition.” This language, far from being an order compelling Evans to do anything, is directed towards defendants’ counsel. Its language is permissive, not mandatory. The district court’s scheduling order is similarly unhelpful. That order required the parties to complete discovery by March 1, 2017. It did not direct either party to engage in any specific course of discovery. Indeed, it required the opposite: that both parties cease their discovery attempts by the stated date.
B
Though neither
The evidence on this issue is one-sided, and it all points towards Evans’s not receiving notice until after the date of the deposition. Evans provided a sworn statement that he did not receive timely notice. His statement is uncontradicted by any other statements (sworn or unsworn) or documents in the record. Kayira seemingly made no attempt to confirm whether or when his notice was received by the prison and delivered to Evans. Showing optimism about the postal service that may have been unwarranted, Kayira placed the deposition notice in the U.S. mail on Thursday for a Tuesday morning deposition; there is no indication that he used an expedited delivery option. Even indulging in the unlikely assumption that the prison would operate its mailroom seven days a week, Kayira allowed only five days for this notice to traverse the prison mail system.
Courts have long recognized the sluggishness of prison mail, even going so far as to create special rules to stop delays in that system from causing unwarranted prejudice to prisoner-litigants. See, e.g., Ray v. Clements, 700 F.3d 993, 1002–03 (7th Cir. 2012) (discussing the prison mailbox rule and the reasons for it, including the possibility of “slow mail service“); see also Turley v. Clendenin, No. 3:15-CV-27-NJR-DGW, 2017 WL 735581, at *2 (S.D. Ill. Feb. 24, 2017) (“Dropping an envelope in the mail and assuming it will be delivered to a prisoner three days later is patently unreasonable.“). Further, throughout Evans’s case, a week or more often elapsed between when he placed a document in the prison mail system and when it was filed with the district court. See, e.g., Complaint 10, ECF No. 1 (sent March 30, 2016, filed April 6, 2016); Plaintiff Motion for Reconsideration 9, ECF No. 31 (sent October 31, 2016, filed November 7, 2016); Letter from Plaintiff 2, ECF No. 52
Even if Kayira’s notice was in Evans’s hands prior to the deposition, it still might have been untimely if it reached him so late that he had no time to prepare.
But we do not have to decide whether a day, or two or three, of preparation time would have been sufficient for Evans because, as defense counsel conceded at oral argument, Evans was entitled at least to actual notice. See
III
Dismissing a case with prejudice is one of the harshest sanctions a court can impose, and so courts must be especially careful before taking that step. Even in the case of an indigent prisoner for whom a high-dollar fine might be inappropriate, other sanctions, including those listed in