Opinion · Court of Appeals for the Eighth Circuit

Aziz v. Wright

Aziz v. Wright, 34 F.3d 587 (8th Cir. 1994)

Type
Opinion
Court
Court of Appeals for the Eighth Circuit
Jurisdiction
Federal
Date
1994-08-09
Topic
general

How later courts describe this case

  • finding dismissal proper under Rule 41(b) for willful disregard of court order and court’s warning of consequences for failure to comply
  • affirming dismissal of pro se plaintiff’s complaint where plaintiff failed to comply with order of the court
  • finding willful violation of discovery-related court order where plaintiff was warned dismissal would be consequence of continued noncompliance
  • affirming rule 41(b) dismissal of action filed by pro se plaintiff who “willfully disregarded” a court order
  • authorizing dismissal as a Rule 37(d) sanction if a party fails to appear for his deposition
  • affirming Rule 41(b) dismissal where pro se plaintiff “willfully disregarded” a court order
  • upholding dismissal with prejudice as a sanction for violating a court order
  • Federal Rule of Civil Procedure 37(d) allows court to dismiss action if party fails to appear for deposition; no motion to compel is required before such dismissal

Citator

UpLaw has not yet analyzed Aziz v. Wright. The absence of a flag is not a finding that it is good law.

Authority status
pending
Cited by
75 opinions
AZIZ v. WRIGHT,34 F.3d 587(8th Cir. 1994)
WASIM AZIZ, PLAINTIFF-APPELLANT, v. T.G. WRIGHT; PENNY R. EPPERSON; MIKE
TAGGERT; RICK WALLACE; ANSEL CARD; URBAN A. LOCK; HEYER; RICHTER; WATTS;
HARRIETT SWINGER; DR. RAYMOND KALFUS; RANDY MOBLEY; VIVIAN WATTS,
DEFENDANTS-APPELLEES.
WASIM AZIZ, PLAINTIFF-APPELLANT, v. T.G. WRIGHT, PENNY R. EPPERSON; MIKE
TAGGERT; RICK WALLACE; ANSEL CARD; URBAN A. LOCK; HEYER; RICHTER; WATTS;
HARRIETT SWINGER; DR. RAYMOND KALFUS; RANDY MOBLEY; VIVIAN WATTS,
DEFENDANTS-APPELLEES.
WASIM AZIZ, PLAINTIFF-DEFENDANT, v. CARL WHITE, SUPERINTENDENT; MIKE
TAGGERT; WALLACE; ATKINS; ANSEL CARD; URBAN A. LOCK, DEFENDANTS-APPELLEES,
WASIM AZIZ, PLAINTIFF-APPELLANT, v. STATE OF MISSOURI; CARL WHITE,
SUPERINTENDENT; WALLACE; ATKINS; TAGGERT, DEFENDANTS-APPELLEES, WASIM AZIZ,
PLAINTIFF-APPELLANT, v. CARL WHITE, SUPERINTENDENT; ATKINS; TAGGERT;
WALLACE; MISSOURI DEPARTMENT OF CORRECTIONS; DICK MOORE; ANSEL CARD; URBAN
A. LOCK, DEFENDANTS-APPELLEES.
Nos. 93-3615, 93-3617.
United States Court of Appeals, Eighth Circuit.
Submitted June 14, 1994.
Decided August 9, 1994.
Page 588
Wasim Azia, pro se.

Barbara J. Wood, Jefferson City, MO, for appellees.
Appeal from the United States District Court for the Western District of Missouri.
Before McMILLIAN, MAGILL, and BEAM, Circuit Judges.
BEAM, Circuit Judge.
[1] Wasim Aziz, a Missouri inmate, appeals the district court's dismissal of his complaint as a sanction for failing to comply with discovery. We affirm.

[2] In May 1991, Aziz filed this42 U.S.C. § 1983complaint against several corrections officers at the Algoa Correctional Center. The court consolidated several of Aziz's pending cases and, in June 1993, the magistrate judge issued an order granting defendants permission to depose Aziz. The defendants sent Aziz notice, informing him that the deposition would be videotaped. Defendants attempted to depose Aziz; however, he objected to being videotaped in his handcuffs, became belligerent, and refused to allow the deposition to commence as long as he remained in handcuffs. Defendants' attorney stopped the deposition because of Aziz's behavior and filed a motion to dismiss pursuant to Federal Rule of Civil Procedure41(b), on the ground that Aziz had violated a court order when he refused to submit to a deposition.

[3] After a pre-trial conference at which all parties discussed Aziz's refusal to allow his deposition, the magistrate judge recommended that Aziz's action be dismissed, pursuant to Federal Rule of Civil Procedure37(d). Defendants then tried a second timePage 589to depose Aziz. Aziz was again uncooperative and refused to be deposed, walking out before the deposition could commence. Defendants filed a second motion to dismiss. Over Aziz's objections, the district court adopted the magistrate judge's report and dismissed Aziz's complaint. Aziz filed two timely notices of appeal, which have been consolidated. On appeal, Aziz argues that the district court erred in dismissing his case because the defendants had not filed a motion to compel discovery. He also asserts that the district court erred in denying his repeated requests for injunctive relief and for not appointing him counsel.

[4] Federal Rule of Civil Procedure37(d) allows the district court to, among other sanctions, dismiss an action if a party "fails to appear" for his or her deposition. Contrary to Aziz's argument, no motion to compel is required before dismissal under Rule 37(d).See Halas v. Consumer Servs. Inc.,16 F.3d 161,164(7th Cir. 1994). A district court has wide latitude in imposing sanctions for failure to comply with discovery, and this court will reverse a decision to dismiss under Rule 37(d) only if the court abused its discretion.Farnsworth v. City of Kansas City,863 F.2d 33,34(8th Cir. 1988) (per curiam),cert. denied,493 U.S. 820,110 S.Ct. 77,107 L.Ed.2d 43(1989).

[5] Other circuits have held that a refusal to answer questions or participate does not constitute a "failure to appear."See R.W.Int'l Corp. v. Welch Foods, Inc.,937 F.2d 11,15,19(1st Cir. 1991);Stevens v. Greyhound Lines, Inc.,710 F.2d 1224,1228(7th Cir. 1983);SEC v. Research Automation Corp.,521 F.2d 585,588-89(2d Cir. 1975) (failure to appear must be strictly construed; Rule 37(d) inappropriate basis for sanctions when party physically present but refuses to be sworn or testify). We agree with our sister circuits that Rule 37(d) should be strictly construed; therefore, we cannot affirm the district court's dismissal on the basis of Rule 37(d). After careful consideration of the record, however, we affirm the district court on the ground argued in defendants' motions to dismiss: failure to comply with an order of the court under Rule 41(b).See UnitedStates v. Swanson,9 F.3d 1354,1358(8th Cir. 1993) (appellate court may affirm district court on any permissible grounds).

[6] An action may be dismissed pursuant to Rule 41(b) if a plaintiff has failed to comply with any order of the court.Burgs v. Sissel,745 F.2d 526,528(8th Cir. 1984) (per curiam). Aziz willfully disregarded the court's order allowing defendants to depose him. Of particular importance, the magistrate judge told Aziz at the pre-trial conference that he would recommend dismissal due to Aziz's conduct at the first deposition. In light of this knowledge, it is hard to construe Aziz's conduct at his second "deposition" as anything but willful disregard of a court order. We, therefore, affirm the district court's dismissal of Aziz's complaint.See First Gen. Resources Co. v. Elton LeatherCorp.,958 F.2d 204,206(8th Cir. 1992) (per curiam) (Rule 41(b) dismissal proper after court warned party of consequence for failure to engage in discovery).

[7] Because Aziz's action was correctly dismissed, his argument that the court erroneously denied his claims for injunctive relief is moot. Finally, the district court correctly denied Aziz appointed counsel.See Williams v. Groose,979 F.2d 1335,1337(8th Cir. 1992) (per curiam).

[8] Accordingly, we affirm.