     Case: 10-51222     Document: 00511675960         Page: 1     Date Filed: 11/25/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 25, 2011
                                     No. 10-51222
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JAIRUS ABRAHAM PEGUES,

                                                  Plaintiff-Appellant

v.

PGW AUTO GLASS, L.L.C.; ADECCO USA, INC.,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:10-CV-86


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Jairus Abraham Pegues appeals the dismissal of his Title VII civil rights
action. The district court dismissed the action under Federal Rule of Civil
Procedure 37(b)(2)(A)(v) & (d), and Rule 41(b), because Pegues failed to allow the
defendants to depose him. We affirm.
        We review the district court’s dismissal for abuse of discretion. National
Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642 (1976);
Salinas v. Sun Oil Co., 819 F.2d 105, 106 (5th Cir. 1987). “An abuse of discretion

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-51222

occurs where the ruling is based on an erroneous view of the law or on a clearly
erroneous assessment of the evidence.” Tollett v. City of Kemah, 285 F.3d 357,
363 (5th Cir. 2002). A Rule 41(b) dismissal “will be affirmed only upon a
showing of a clear record of delay or contumacious conduct by the plaintiff, and
where lesser sanctions would not serve the best interest of justice.” Salinas, 819
F.2d at 106 (internal quotation marks, alterations, and citation omitted).
      Similarly, a Rule 37 dismissal is proper if the refusal to cooperate resulted
“from willfulness or bad faith and is accompanied by a clear record of delay or
contumacious conduct.” FDIC v. Conner, 20 F.3d 1376, 1380 (5th Cir. 1994)
(internal quotation marks and citation omitted). Further, the discovery violation
must be attributable to the party himself rather than his attorney. Id. In
addition, the violation must substantially prejudice the opposing party, and a
lesser sanction would not have achieved the desired deterrent effect. Id. at 1380-
81. “Deliberate, repeated refusals to comply with discovery orders have been
held to justify the use of this ultimate sanction” of dismissal with prejudice.
Bonaventure v. Butler, 593 F.2d 625, 625-26 (5th Cir. 1979) (dismissal of pro se
action where plaintiff persistently refused to appear for a deposition).
      The district court found, and the record confirms, that Pegues persistently
refused to arrange to have his deposition taken. Even after the Magistrate
Judge carefully explained deposition requirements and procedures and ordered
Pegues to give his deposition at a certain place, date, and time, he refused to
appear. He based his refusal on meritless arguments about federal discovery
rules even after those arguments were rejected.          Pegues’s fear of being
assassinated by the defendants was at best unreasonable and at worst
disingenuous, but in any event, shows that his refusal to be deposed was
deliberate and contumacious. Even on appeal, Pegues continues to argue that
he was not required to submit to a deposition. His contention that he could not
be deposed because he has no lawyer rests on a misapplication of FED. R. CIV. P.



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                                  No. 10-51222

32(a)(5)(b), which simply does not apply in his case. His other various other
assertions lack legal, factual, or logical support.
      Because Pegues was acting pro se, he had no counsel to blame for his
actions. See Conner, 20 F.3d at 1380. Also, it was not erroneous for the district
court to conclude that the inability to depose the plaintiff prejudiced the
defendants’ ability to prepare for trial and defend Pegues’s sometimes vague and
confusing claims. Cf. Hickman v. Fox Television Station, Inc., 231 F.R.D. 248,
253 (S.D. Tex. 2005) (noting that the plaintiff’s continued unavailability for
deposition caused undue prejudice to the defendant). In addition, the court
properly reasoned that lesser sanctions would have been unavailing. Pegues
was explicitly warned of the possibility of dismissal, and nothing suggests that
further warnings would have been effective. Pegues was proceeding in forma
pauperis, so it is unlikely that he would have been able to pay a fine or that a
fine would have changed his position. Moreover, Pegues continues to assert even
on appeal that he need not submit to a deposition, thus demonstrating that even
the drastic sanction of dismissal has not persuaded him to reconsider his
position.
      Pegues’s motion to amend his reply brief is GRANTED as we have
considered his argument. He nonetheless has provided no coherent and viable
challenge to the district court’s dismissal, and the court did not abuse its
discretion by dismissing the action with prejudice. See Bonaventure, 593 F.2d
at 626. The judgment of the district court is AFFIRMED.




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