                              In the
    United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 03-3436
HARRY L. MAYNARD,
                                                Plaintiff-Appellant,
                                  v.

KEITH NYGREN, not individually but
as Sheriff of McHenry County, Illinois,
                                               Defendant-Appellee.

                           ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Western Division.
           No. 98-CV-50193—Philip G. Reinhard, Judge.
                           ____________
      SUBMITTED APRIL 14, 2004*—DECIDED JUNE 22, 2004
                       ____________



    Before BAUER, CUDAHY and COFFEY, Circuit Judges.
  CUDAHY, Circuit Judge. This is a successive appeal. In
1998, Harry L. Maynard brought suit against his employer,
Sheriff Keith Nygren, for an alleged violation of the Ameri-
cans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213.


*
  After an examination of the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is
submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2).
2                                                 No. 03-3436

Learning of discovery violations shortly before trial, the
district court granted the defendant Sheriff’s motion to
dismiss and assessed monetary sanctions (in the form of an
award to the Sheriff of attorney’s fees incurred in bringing
the successful motion for dismissal and a $3,500 fine for the
court’s time) against Maynard and his counsel. In Maynard
v. Nygren, 332 F.3d 462 (7th Cir. 2003) (“Maynard I”), we
determined, as a matter of first impression, that “consider-
ing the severe and punitive nature of dismissal as a dis-
covery sanction, a court must have clear and convincing
evidence of willfulness, bad faith or fault before dismissing
a case.” Id. at 468. Since the district judge had not specified
whether his determination was based on the clear and
convincing standard or a preponderance standard, we re-
manded for a reconsideration of the evidence in light of the
standard we announced. Id. at 469. We asked the district
court, on remand, to more fully articulate the rationale for
not imposing a sanction short of dismissal. Id. at 469 n.4.
We also reversed the sanctions levied against Maynard’s
counsel as unauthorized, given the circumstances.
  On remand, the district court found by clear and con-
vincing evidence that Maynard had “wilfully violated the
court’s discovery rules and that the appropriate sanction,
after considering the potential alternatives, is dismissal
of plaintiff’s case with prejudice.” (SA at 19.1) Maynard
appeals both of these determinations and argues that the
district judge should be recused from any further proceed-
ings. Maynard does not appeal the district court’s reaffirma-
tion of the monetary sanctions previously imposed against
him, id., though he does argue that his failure to pay them
prior to the remand hearing should not have been used by
the district court as a rationale for dismissal of his suit.
Because the district court did not err in finding (according


1
  References to the Short Appendix attached to Appellant’s Brief
will be designated by “SA at __.”
No. 03-3436                                                 3

to a clear and convincing evidence standard) that Maynard
had willfully violated the court’s discovery rules or that
dismissal was appropriate, we affirm the dismissal of
Maynard’s suit.


                    I. WILLFULNESS
  Although discovery sanctions, including dismissal, are
reviewed for an abuse of discretion,we review the district
court’s factual findings for clear error. Dotson v. Bravo, 321
F.3d 663, 666-67 (7th Cir. 2003). Willfulness is, of course, a
factual determination. See Everyday Learning Corp. v.
Larson, 242 F.3d 815, 817-18 (8th Cir. 2001). “[W]hen a
trial judge’s finding is based on his decision to credit the
testimony of one of two or more witnesses, each of whom
has told a coherent and facially plausible story that is not
contradicted by extrinsic evidence, that finding, if not
internally inconsistent, can virtually never be clear error.”
Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).
  The district court found that the evidence and testimony
clearly and convincingly supported a finding that Maynard
had picked up the April 4 letter from Dr. David Martinez’s
office. (SA at 36-37.) Although the document had also been
copied by Dr. Martinez’s office as part of its small file on
Maynard and sent to Maynard’s trial counsel’s office, it was
not turned over to opposing counsel by either Maynard or
his counsel. (SA at 37.) The district judge reviewed in detail
his factual and credibility findings concerning the evidence
surrounding this document and concluded that Maynard
was “untruthful when [he] said [he] neither requested or got
the letter.” (SA at 39.) The district judge found by clear and
convincing evidence that Maynard had intentionally and
willfully withheld the April 4 letter from opposing counsel.
(SA at 39-40.)
  Maynard is basically arguing that circumstantial evidence
cannot be clear and convincing evidence. But this is not a
motion for summary judgment, and the existence of “factual
4                                               No. 03-3436

disputes” given the circumstantial nature of the evidence
does not prevent the district judge from validly finding by
clear and convincing evidence that Maynard’s discovery
violation was willful. Cf. United States v. Klausner, 80 F.3d
55, 63 (2d Cir. 1996) (“Willfulness may be inferred from
circumstantial evidence.”); United States v. Grumka, 728
F.2d 794, 797 (6th Cir. 1984) (“[A] conviction may be
sustained even when proof of willfulness is entirely circum-
stantial.”). We have already noted in Maynard I that “the
evidence does appear to support the Sheriff’s positions and
the district court’s conclusions quite strongly,” Maynard I,
332 F.3d at 469, and the inferences and credibility findings
made by Judge Reinhard seem reasonable and are sup-
ported by the evidence he cites in the record. Thus, the
district judge’s finding by clear and convincing evidence
that Maynard had willfully violated discovery rules was not
clearly erroneous.


        II. APPROPRIATENESS OF DISMISSAL
   Discovery sanctions are reviewed for an abuse of discre-
tion. Maynard I, 332 F.3d at 467. “Of all possible sanctions,
dismissal is considered ‘draconian,’ and we must be ‘vigi-
lant’ in our review.” Id., quoting Marrocco v. Gen. Motors
Corp., 966 F.2d 220, 223-24 (7th Cir. 1992). The sanction of
dismissal must be one that a reasonable jurist, apprised of
all the circumstances, would have chosen as proportionate
to the infraction. Salgado v. Gen. Motors Corp., 150 F.3d
735, 740 (7th Cir. 1998). Our review is not akin to a rubber
stamp, Dunphy v. McKee, 134 F.3d 1297, 1300 (7th Cir.
1998), but “[w]e cannot understate the difficulty of the task
litigants face when challenging a district court’s choice of
sanctions. They must convince us that the district court
abused its discretion in sanctioning them—a burden which
is met only when it is clear that no reasonable person would
agree with the trial court’s assessment of what sanctions
No. 03-3436                                                 5

are appropriate.” Marrocco, 966 F.2d at 223. An abuse of
discretion is found where the decision of the trial court
strikes us as “fundamentally wrong,” Anderson v. United
Parcel Service, 915 F.2d 313, 315 (7th Cir. 1990), or is
“clearly unreasonable, arbitrary, or fanciful.” Beil v.
Lakewood Eng’g and Mfg. Co., 15 F.3d 546, 551 (6th Cir.
1994).
  Maynard challenges the district court’s determination
that dismissal of his suit was the only appropriate sanction
given the circumstances. The district judge found that the
defendant was prejudiced by the lateness of the disclosure
and would be further prejudiced if required to defend “such
a weak case.” (SA at 49-50, 54-55.) Three factors apparently
played into the district court’s determination that a lesser
sanction would not be appopriate: (1) Maynard’s continued
untruthfulness (SA at 47-48); (2) Maynard’s failure to pay
any portion of the monetary sanctions imposed against him
(or even to offer to pay them on an installment plan) due to
a claimed (but not well-supported) inability to pay, which
operated to the defendant’s prejudice if the lawsuit were
allowed to continue (SA at 45-47, 50, 56-57); and (3) the
evidentiary weakness of Maynard’s case, which might not
have survived summary judgment had he turned over the
April 4 letter and which was further weakened by the
discovery violation and his untruthfulness, together with
the minimal damages he could claim (SA at 49, 52-54).
  We find that all three of the above factors are valid rea-
sons supporting the sanction of dismissal in this case. See
Martin v. DaimlerChrysler Corp., 251 F.3d 691, 694-95 (8th
Cir. 2001), cited in Allen v. Chicago Transit Auth., 317 F.3d
696, 703 (7th Cir. 2003) (affirming district court’s dismissal
of suit as sanction for repeated discovery-related perjury);
Thomas v. GMAC, 288 F.3d 305, 307 (7th Cir. 2002) (noting
that dismissal with prejudice appropriate where “monetary
sanction would probably be difficult to collect”); McHenry v.
Renne, 84 F.3d 1172, 1179 (9th Cir. 1996), quoting
6                                                No. 03-3436

Poppenheim v. Portland Boxing & Wrestling Comm’n, 442
F.2d 1047, 1052 n.4 (9th Cir. 1971) (“[T]he harshness of a
dismissal with prejudice is directly proportionate to the
likelihood that plaintiff would prevail if permitted to go
forward to trial. Since harshness is a key consideration in
the district judge’s exercise of discretion, it is appropriate
that he consider the strength of a plaintiff’s case . . . .”).
Given the unlikelihood that Maynard would prevail at this
point if allowed to go to trial, it would seem to be a waste of
resources for all involved if we were to reverse the district
court’s decision to dismiss Maynard’s suit as a sanction for
his discovery violations.


                     III. CONCLUSION
    The judgment of the district court is AFFIRMED.

A true Copy:
        Teste:

                         ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                    USCA-02-C-0072—6-22-04
