The Seventh Circuit Court of Appeals has reversed a district court’s dismissal of a prisoner’s suit for failure to prosecute. The appellate court found the severe sanction of dismissal was not justified.

Illinois prisoner Amilcar Gabriel sustained second- and third-degree burns while working in the kitchen at the Big Muddy River Correctional Center. He then sued prison officials and Wexford Health Sources, Inc., the prison’s private healthcare provider, in federal court. He alleged the defendants knowingly exposed him to dangerous work conditions and were recklessly indifferent to his serious medical needs.

Initial discovery closed on May 25, 2004, and a pretrial conference was scheduled for August 12, 2004. “Shortly before that conference, Gabriel disclosed Dr. Richard Lewan as his expert witness. Defendants ... then moved to bar Dr. Lewan’s testimony on grounds that Gabriel had failed to provide the doctor’s expert report in accordance with Rule 26(a)(2) of the Federal Rules of Civil Procedure.” The magistrate judge granted the motion and barred Dr. Lewan’s testimony, and the case was set for trial.

Two days later Gabriel moved to reopen discovery and permit additional time to provide his expert’s report. The motion was based, in part, upon Dr. Lewan’s inability “to complete his report because of difficulties scheduling the deposition of Dr. Garcia, Gabriel’s treating physician, who had left his job in the Illinois Department of Corrections and now worked at a correctional facility in Missouri.”

The district court granted Gabriel’s motion and gave him until November 19, 2004 to provide the expert report. Gabriel timely provided Dr. Lewan’s report, the defendants did not object, and trial was rescheduled for July 12, 2005. The trial was continued twice to accommodate the court’s schedule and once to accommodate the defendants’ schedule, resulting in a September 19, 2005 trial date.

On September 14, 2005, Gabriel moved for a continuance, or in the alternative to voluntarily dismiss, because “Dr. Lewan had been scheduled to testify on ... September 27, and was unavailable to testify or give a deposition during the week of September 19. Because Dr. Lewan’s testimony was necessary to demonstrate the deliberate indifference required to sustain a prisoner’s § 1983 claim, Gabriel maintained his case would not survive a motion for directed verdict without it.”

The district court denied Gabriel’s motion and dismissed his suit with prejudice for want of prosecution. The court mistakenly concluded that Dr. Lewan’s testimony remained barred, and incorrectly identified Dr. Garcia as Gabriel’s expert. “The court concluded it ‘might be more sympathetic to plaintiff’s counsel’s motion if it were not for the fact that the reason she seeks a continuance or dismissal without prejudice is due to the unavailability of Dr. Lewan, a witness whose testimony has been barred by this court.”

Gabriel moved for reconsideration, asserting that the court was mistaken. Defense counsel did not defend the court’s mistaken reading of the record and conceded that Dr. Lewan’s testimony had not been barred. Regardless, the district court rejected Gabriel’s motion and denied reconsideration. Gabriel appealed.

The Seventh Circuit noted that it reviews the “denial of a continuance and dismissal for want of prosecution for abuse of discretion and will reverse ‘only if the decision [is] fundamentally wrong.’” See: Moffitt v. Ill. State Bd. of Educ. 236 F.3d 868, 873 (7th Cir. 2001). “Although this hurdle is admittedly high, it is not insurmountable.”

The Court of Appeals also noted it had previously held that “dismissal for failure to prosecute is an extraordinarily harsh sanction” that should be used “only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing,” citing Kruger v. Apfel, 214 F.3d 784, 787 (7th Cir. 2000). Finally, the appellate court observed that dismissal for want of prosecution is improper in the absence of an explicit warning to the plaintiff. See: Sharif v. Wellness Intern. Network Ltd., 376 F.3d 725 (7th Cir. 2004).

The Seventh Circuit agreed “that the record simply does not support the district court’s conclusion that Dr. Lewan’s testimony remained barred at the time of trial.” Accordingly, the Court concluded that “to the extent the dismissal sanction was premised on the district court’s mistaken impression that Dr. Lewan’s testimony was barred, it cannot stand.”
Moreover, given that there was “no pattern of delay, missed deadlines, non-cooperation, or other litigation misconduct on the part of the plaintiff, and the imposition of sanctions is premised on a misreading of the record,” the Court of Appeals held the “dismissal is unwarranted and an abuse of discretion,” especially given that there was “no claim that a continuance would prejudice the defendants.” See: Gabriel v. Hamlin, 514 F.3d 734 (7th Cir. 2008).

On remand, Gabriel’s suit was reinstated and proceeded to trial in October 2008. The jury returned a verdict against one of the defendants, Dr. Brian Ruiz, in the amount of $50,000.
On March 4, 2009, the district court awarded attorney fees to Gabriel in the amount of $39,268.50 plus $7,152.33 in costs and expert fees. The court ordered that $12,500 of the attorney fees be paid from the damages award, pursuant to the Prison Litigation Reform Act (PLRA). See: Gabriel v. Hamlin, 2009 U.S. Dist. LEXIS 17029 (March 4, 2009).

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