            Case: 15-14260    Date Filed: 07/18/2017   Page: 1 of 9


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 15-14260
                          Non-Argument Calendar
                        ________________________

                  D.C. Docket No. 4:12-cv-00030-RH-CAS



HENRY J. LAFAVORS,

                                                             Plaintiff-Appellant,

                                   versus

SCOTT THAYER, etc., et al.,

                                                                      Defendants,

RONALD SOLORZANO,
Dr.,

                                                            Defendant-Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Northern District of Florida
                       ________________________

                               (July 18, 2017)
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Before ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Henry LaFavors, a state prisoner proceeding pro se, appeals the district

court’s dismissal, for failure to comply with a court order, of his complaint brought

under 42 U.S.C. § 1983. On appeal, LaFavors argues that the district court twice

abused its discretion. First, LaFavors asserts that the district court wrongfully

imposed a monetary sanction, despite his inability to pay, after he failed to attend a

properly noticed deposition. Second, LaFavors contends that the district court

erred in dismissing his complaint after he failed to pay the imposed sanction and

failed to communicate directly with the court about his inability to do so. After

careful consideration, we affirm the ruling of the district court.

                                           I.

      The trouble in this case can be traced back to LaFavors’s failure to attend his

own deposition, without so much as advising opposing counsel in advance. As a

result, Defendant-Appellee Dr. Ronald Solorzano unnecessarily incurred costs of

$294.35. So Solorzano moved for sanctions in that amount and for dismissal. The

district court ordered LaFavors to respond to the motion.

      In response, LaFavors admitted that he did not attend the deposition. But he

stated that he had tried unsuccessfully to contact opposing counsel about ten days

before the deposition to request a telephonic deposition, since he said he was


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unemployed and could not afford to travel from his home in Fort Lauderdale to the

deposition in Tallahassee. LaFavors also asserted that he could not afford to

reimburse the costs of the deposition.

      The magistrate judge issued a report and recommendation (“R&R”)

recommending that the court impose a monetary sanction. Though the magistrate

judge acknowledged that Rule 37 allowed for dismissal of the action, the

magistrate judge noted that that was a severe sanction and opined that LaFavors

had not yet crossed the line justifying dismissal. But, the magistrate judge warned,

he was “perilously close.” Accounting for LaFavors’s financial condition, the

magistrate judge recommended a sanction of $130.35 to be paid within 30 days.

      The district court adopted the R&R and ordered LaFavors to pay $130.35 by

December 17, 2014, and to submit to a deposition by January 20, 2015. The order

expressly cautioned that “[f]ailing to pay may result in dismissal of this case.”

And it directed Solorzano to inform the court if LaFavors failed to pay the sanction

by December 17, 2014.

      On December 29, 2014, Solorzano filed a notice stating that LaFavors had

made no payment towards the sanction. The magistrate judge then issued an order

giving LaFavors “one final opportunity in which to comply with the sanction

imposed” by paying the ordered amount by January 20, 2015.




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      On January 23, 2015, Solarzano filed a motion for extension of time to

complete discovery.      He explained that the parties had scheduled LaFavors’s

deposition for January 20, 2015. But on that morning, LaFavors had contacted

opposing counsel to advise that he could not attend because of car trouble. The

parties had agreed to reschedule the deposition for February 9, 2015, and asked the

court to extend discovery until then.

      The magistrate judge granted the motion and extended the discovery period

until February 9, 2015. In addition, as LaFavors had not yet paid the sanction, the

magistrate judge ordered LaFavors to pay the $130.35 by check or money order by

February 9, 2015, and to file a notice with the court upon payment. The order

warned that “[f]ailure to comply with this Court Order will result in a

recommendation of dismissal of this action.”         Finally, the magistrate judge

instructed Solorzano to notify the court within three days of LaFavor’s

noncompliance if LaFavors failed to comply.

      But when February 13 rolled around, the court still had received no notice of

payment from LaFavors and no notice of non-compliance from Solorzano. So the

magistrate judge entered an order directing LaFavors to file a notice stating that he

had paid the sanction.

      Eleven days later, after LaFavors had not responded to the court’s order,

Solorzano filed a notice advising the court that LaFavors had attended the


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deposition and had submitted a money order in the amount of $35.00. Solorzano

also noted that LaFavors had requested copies of discovery records that would cost

$34.35, which Solorzano argued showed that LaFavors had more money to pay the

sanction.

      The magistrate judge issued an R&R recommending that the district court

dismiss the case for failure to comply with court orders and failure to pay

sanctions. LaFavors did not file an objection to the R&R.

      The district court adopted the R&R and dismissed LaFavors’s case with

prejudice. In its order, the district court noted that, even after repeated extensions

of time, LaFavors had failed to pay the imposed sanction or to show an inability to

pay. Nor had LaFavors filed an objection to the R&R. And the district court noted

LaFavors’s actions in a previously dismissed case based on the same facts, where

LaFavor had submitted fraudulent documents purporting to show an exhaustion of

administrative remedies. Based on this record, the district court concluded that “no

sanction short of dismissal [would] be sufficient to bring about [LaFavors’s]

compliance.”

                                         II.

      We review the imposition of sanctions for abuse of discretion, ensuring that

the district court’s findings are fully supported by the record. OFS Fitel, LLC v.

Epstein, Becker and Green, P.C., 549 F.3d 1344, 1360 (11th Cir. 2008).


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      Pro se litigants must comply with the Federal Rules of Civil Procedure.

Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). Even when a pro se

litigant is indigent or proceeding in forma pauperis (“IFP”), he is subject to

sanctions—including monetary sanctions—under these Rules. Id.

      A district court may impose sanctions when a party fails to appear at his own

deposition. Fed. R. Civ. P. 37(d). On the other hand, a party may be excused from

paying a deposition’s reasonable expenses when his absence is substantially

justified or other circumstances make awarding expenses unjust. See Fed. R. Civ.

P. 37(d)(3). “Substantially justified” means that reasonable people could differ as

to whether missing the deposition was appropriate. See Knight through Kerr v.

Miami-Dade Cty., 856 F.3d 795, 812 (11th Cir. 2017). But mere mistakes do not

excuse pro se parties from complying with procedural rules. See McNeil v. United

States, 508 U.S. 106, 113 (1993).

      If the court finds sanctions appropriate, it must include the reasonable

expenses caused by the sanctioned party’s absence. See Fed. R. Civ. P. 37(d)(3).

But the court must also consider the sanctioned party’s financial ability in

determining whether to impose monetary sanctions. Baker v. Alderman, 158 F.3d

516, 529 (11th Cir. 1998).

      Here, the district court did not abuse its discretion in ordering LaFavors to

pay sanctions for his failure to appear for his own deposition. LaFavors knowingly


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failed to attend his own properly noticed deposition. And he did so without even

having the courtesy to advise opposing counsel in advance. As a result, Solorzano

incurred unnecessary costs and fees.            Under these circumstances, LaFavors’s

absence could not be described as “substantially justified.” and the imposition of

costs on LaFavors was not otherwise unjust. So the court properly exercised its

discretion, accounting for LaFavors’s financial condition 1, in requiring LaFavors to

bear at least a portion of the costs and fees he unnecessarily inflicted on Solorzano.

Indeed, Rule 37(d)(3), Fed. R. Civ. P., requires the district court to impose

sanctions on an offending party in these circumstances.                 See Fed. R. Civ. P.

37(d)(3) (“[T]he court must require the party failing to [attend its properly noticed

deposition], the attorney advising that party, or both to pay the reasonable

expenses, including attorney’s fees, caused by the failure, unless the failure was

substantially justified or other circumstances make an award of expenses unjust.”)

(emphasis added).

                                              III.

       When a district court dismisses a case for failure to comply with a court

order, we review the dismissal for abuse of discretion. See Phipps v. Blakeney, 8

F.3d 788, 790 (11th Cir. 1993).


       1
         LaFavors originally did not seek to proceed in forma pauperis and paid a $350 filing fee
upon filing the original complaint. The complaint that was ultimately dismissed was the eighth
amended complaint.
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      If a party fails to obey a discovery order or to attend his own deposition, a

district court may dismiss the party’s action. See Fed. R. Civ. P. 37(b)(2)(A)(v),

(d)(3). Because dismissal is a drastic sanction, a district court must first find that

the party’s failure to comply with the relevant order was willful or in bad faith and

that lesser sanctions would not have sufficed. See OFS Fitel, LLC, 549 F.3d at

1366 n.24; Wouters v. Martin Cty., 9 F.3d 924, 933-34 (11th Cir. 1993).

      When a party disregards a court order despite forewarning that dismissal

could result, a subsequent dismissal is generally not an abuse of discretion. Moon,

863 F.2d at 837. If a pro se party believes he cannot fulfill a court order, such as a

monetary sanction, he must timely, directly, and particularly explain his inability to

comply. See id. at 838 n.5. Naked claims of destitution will not bar dismissal for

failure to comply with sanctions. See id. at 838-39.

      Here, the district court gave LaFavors multiple opportunities to comply with

its order requiring payment of the sanction or to explain why he could not. And

the court specifically warned that dismissal would result if LaFavors failed to

comply with the district court’s ultimate payment order. Yet LaFavors failed to

obey the district court’s order to fully pay the sanction, and he did not provide any

explanation for his delinquency. Indeed, he did not respond at all to the court’s

order directing him to file a notice of payment. He likewise filed no objections to

the magistrate judge’s recommendation of dismissal. Under these circumstances,


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we cannot say that the court clearly erred in concluding that LaFavors’s failure to

comply was willful or that lesser sanctions would have been inadequate. In short,

the district court did not abuse its discretion when it dismissed LaFavors’s

complaint.

      AFFIRMED.




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