863 F.2d 835 (11th Cir. 1989), 88-8049, Moon v. Newsome

Docket Nº:88-8049
Citation:863 F.2d 835
Party Name:David Richard MOON, Plaintiff-Appellant, v. Lanson NEWSOME, Warden, et al., Defendants-Appellees.
Case Date:January 17, 1989
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 835

863 F.2d 835 (11th Cir. 1989)

David Richard MOON, Plaintiff-Appellant,


Lanson NEWSOME, Warden, et al., Defendants-Appellees.

No. 88-8049

United States Court of Appeals, Eleventh Circuit

January 17, 1989

Page 836

David Richard Moon, Reidsville, Ga., pro se.

William Phillips Tinkler, Jr., Decatur, Ga., Michael E. Hobbs, State Law Dept., Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Georgia.

Before HATCHETT and EDMONDSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

In this appeal we consider whether the damage suit of a pro se plaintiff proceeding in forma pauperis can be dismissed for failure to pay costs assessed as a penalty for unreasonable refusal to obey a discovery order. We believe such dismissals are permitted. Under the circumstances, the district court did not abuse its discretion

Page 837

by dismissing this action. We affirm the court's judgment.

Plaintiff-appellant David Moon, a prisoner, filed a pro se complaint under 42 U.S.C. sec. 1983. Defendant-appellees' motion for leave to depose Moon in prison pursuant to Fed.Rule Civ.Proc. 30(a) was granted. Moon filed an objection urging the court to deny defendants permission to take the deposition. The magistrate then issued an order denying Moon's objection. The order warned that if Moon refused to be deposed costs could be assessed against him or his case could be dismissed.

Moon appeared at the deposition and was sworn but refused to allow the questioning to proceed. He raised unfounded objections, repeatedly interrupting defendants' lawyer. Finally, Moon abruptly left the room without having answered any questions. Defendants moved under Fed.Rule Civ.Proc. 37 for sanctions, including dismissal of the complaint and costs for the attempted deposition.

The magistrate found that Moon's conduct at the deposition was unreasonable and that Moon had willfully thwarted the progress of the deposition. Instead of immediately dismissing the action under Rule 37, 1 however, the magistrate let Moon proceed on the condition that he make defendants whole for the attempted deposition. The magistrate ordered Moon to pay to defendants the full costs of the deposition ($909.72) within ninety days and warned that failure to make timely payment would result in dismissal with prejudice. When Moon paid nothing, the district court dismissed the case. 2

Moon's failure to comply with the order directing him to submit to deposition is a failure "to obey an order to provide or permit discovery" under Fed.Rule Civ.Proc. 37(b), for which assessment of reasonable expenses caused by the failure is a proper sanction. Dismissal of an action for failure to comply with court-ordered sanctions is permitted under Fed.Rule Civ.Proc. 41(b). While dismissal is an extraordinary remedy, dismissal upon disregard of an order, especially where the litigant has been forewarned, generally is not an abuse of discretion. See State Exchange Bank v. Hartline, 693 F.2d 1350, 1352 (11th...

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