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

No. 06-3636
AMILCAR GABRIEL,
                                          Plaintiff-Appellant,
                              v.

JIM HAMLIN, BOB DOERR, ALLAN R.
WISELY, BRIAN RUIZ, M.D., and
WEXFORD HEALTH SOURCES, INC.,
                                       Defendants-Appellees.
                        ____________
          Appeal from the United States District Court
              for the Southern District of Illinois.
           No. 02 C 187—William D. Stiehl, Judge.
                        ____________
   ARGUED APRIL 12, 2007—DECIDED FEBRUARY 1, 2008
                     ____________


 Before RIPPLE, EVANS, and SYKES, Circuit Judges.
  SYKES, Circuit Judge.        Amilcar Gabriel filed this
prisoner’s-rights case after being seriously injured while
working in a prison kitchen. One week before his trial
was scheduled to commence, the district court moved
the trial date forward. Gabriel then sought a continuance
on grounds that his expert witness was unable to accom-
modate the last-minute change in schedule. Mistakenly
believing Gabriel’s expert to be barred by an earlier
discovery order, the court denied the continuance and
dismissed Gabriel’s case with prejudice for failure to
prosecute. Because we find no conduct on Gabriel’s part
to justify this severe sanction, we reverse.
2                                             No. 06-3636

                    I. Background
   Amilcar Gabriel sustained second- and third-degree
burns while working in the prison kitchen during his
incarceration at Big Muddy River Correctional Center in
Illinois. Initially proceeding pro se, Gabriel brought this
action under 42 U.S.C. § 1983 alleging various prison
officials and healthcare providers knowingly exposed him
to dangerous work conditions and were recklessly indif-
ferent to his serious medical needs following his injury.
Gabriel subsequently obtained counsel and discovery
ensued. Upon Gabriel’s request, an initial discovery
deadline was continued until May 25, 2004, and a pretrial
conference was then scheduled for August 12, 2004.
Shortly before that conference, Gabriel disclosed
Dr. Richard Lewan as his expert witness. Defendants
Brian Ruiz, M.D., and Wexford Health Sources, Inc.
(“Wexford”) 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. On August 24, 2004,
a magistrate judge granted this motion and barred
Dr. Lewan’s testimony. The case was then transferred to
a district court judge for trial.
  On August 26 Gabriel moved to reopen discovery and
permit additional time to provide his expert’s report. His
motion stated that Dr. Lewan had been unable to com-
plete 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. On
August 31, 2004, the district court granted Gabriel extra
time to depose Dr. Garcia and ordered that “[p]laintiff ’s
expert shall review this deposition and provide his report
on or before November 19, 2004.” Although the order did
not specifically mention Dr. Lewan and did not address
the magistrate judge’s prior order barring Dr. Lewan’s
No. 06-3636                                                3

testimony, it was clear from Gabriel’s motion that
Dr. Lewan was his only expert, and the order permitted
extra time to file the expert’s report. In compliance with
the August 31 order, Gabriel deposed Dr. Garcia and
timely provided Dr. Lewan’s expert report. No defendant
objected (in addition to Dr. Ruiz and Wexford, the defen-
dants include Allan Wisely, a corrections health adminis-
trator, and food service administrators Jim Hamlin and
Bob Doerr); all parties then proceeded to prepare for a
July 12, 2005 trial date. At a final pretrial conference,
the court noted that trial was expected to last four to
five days and would take place only on Tuesdays, Wednes-
days, and Thursdays.
  On June 24, 2005, the court continued the trial to August
23, 2005, to accommodate its own schedule. In mid-July all
defendants sought a continuance due to sched-
uling conflicts.1 The court granted these requests and
rescheduled the trial to commence Tuesday, September 20,
2005, with the understanding that it would proceed on
Tuesday through Thursday of that and the following week.
On September 12 the court again altered the trial to
accommodate its own schedule, this time moving it forward
one day to Monday, September 19, to conclude that Friday
instead of continuing into the following Tuesday. On
September 14 Gabriel moved for a continuance, or in the
alternative a voluntary dismissal, on grounds that
Dr. Lewan had been scheduled to testify on Tuesday,
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


1
   Although defendants Ruiz and Wexford were represented by
separate counsel than Hamlin, Doerr, and Wisely, both counsel
filed motions for continuances on grounds that they had other
trials scheduled the week of August 23.
4                                               No. 06-3636

§ 1983 claim, Gabriel maintained his case would not
survive a motion for directed verdict without it. Although
counsel for both sets of defendants opposed Gabriel’s
motion, neither maintained that the magistrate’s earlier
order barring Dr. Lewan’s testimony was still in force. To
the contrary, in their response to the motion, Ruiz and
Wexford explicitly referenced “[the District] Court’s
ruling to reverse its decision to bar Dr. Lewan as an ex-
pert in this case.”
   The district court denied either form of relief and in-
stead dismissed Gabriel’s case with prejudice for want of
prosecution. In explaining its order, the court stated
Dr. Lewan’s testimony remained barred because the
August 31, 2004 order concerned only Dr. Garcia, whom
the court mistakenly identified as Gabriel’s expert. The
court concluded it “might be more sympathetic to plain-
tiff ’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 filed a motion to reconsider, explaining that
Dr. Garcia was only a treating physician and maintaining
the August 31 order had lifted the bar on Dr. Lewan’s
testimony. In their responses neither defense counsel
defended the court’s mistaken reading of the record;
counsel for defendants Hamlin, Doerr, and Wisely con-
ceded “[i]t was the understanding of the undersigned that
plaintiff ’s expert, Dr. Lewan, was not barred from testify-
ing at trial.” Nonetheless, the court rejected Gabriel’s
contention of mistake and denied the motion. In doing
so the judge elaborated that even if Dr. Lewan’s testi-
mony had not been barred, “plaintiff ’s counsel’s failure to
secure his testimony by deposition, for use at trial or
otherwise, was sufficient grounds for this Court to . . .
dismiss the action.” This appeal followed.
No. 06-3636                                                5

                     II. Discussion
   We review a district court’s denial of a continuance
and dismissal for want of prosecution for abuse of discre-
tion and will reverse “only if the decision strikes us as
fundamentally wrong.” 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. To that
effect, we have also stated “ ‘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.’ ” See Kruger
v. Apfel, 214 F.3d 784, 787 (7th Cir. 2000) (citing Dunphy
v. McKee, 134 F.3d 1297, 1299 (7th Cir. 1998)). Further,
“we have repeatedly held that a district court ordinarily
may not dismiss a case for want of prosecution without
first providing an explicit warning to the plaintiff.” Sharif
v. Wellness Intern. Network, Ltd., 376 F.3d 720, 725 (7th
Cir. 2004); see also Ball v. City of Chicago, 2 F.3d 752, 760
(7th Cir. 1993).
  We agree with Gabriel that the record simply does not
support the district court’s conclusion that Dr. Lewan’s
testimony remained barred at the time of trial. The August
31, 2004 order reopening discovery specifically granted
Gabriel additional time to provide his expert’s report
following Dr. Garcia’s deposition, and its language that
“[p]laintiff ’s expert shall review [Dr. Garcia’s] deposition
and provide his report” plainly indicates that expert and
deponent are not one and the same. Although there is
some ambiguity given the order’s failure to mention
Dr. Lewan by name, this ambiguity is easily clarified by
Gabriel’s motion and exhibits, which listed Dr. Lewan as
his only expert and explained that he was unable to
provide a final report without Dr. Garcia’s deposition. No
defendant objected when Gabriel provided Dr. Lewan’s
expert report and listed him as a testifying expert wit-
6                                                  No. 06-3636

ness after the order had been issued; moreover, the
defendants conceded in the district court that they did
not understand Dr. Lewan’s testimony to remain barred.2
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.
  The only additional reason the court cited in support
of its dismissal sanction was Gabriel’s failure to secure a
trial deposition of Dr. Lewan as a contingency. Although
taking trial depositions is unquestionably a wise pre-
caution, Gabriel’s only request for a continuance—filed
immediately upon learning of the court’s sua sponte
alteration of the trial schedule—does not come close to
the type of misbehavior we have held warrants a dis-
missal with prejudice. See, e.g., Greviskes v. Univs. Re-
search Ass’n, Inc., 417 F.3d 752, 759 (upholding dismissal
“where a record of delay existed in [plaintiff ’s] litigation
strategy of refusing to stipulate to basic facts, submitting
multiple frivolous motions to dismiss the evidentiary
hearing, engaging in fraudulent misconduct, and throwing
roadblocks in the process of awarding attorney’s fees”);
Ball, 2 F.3d at 753-54 (upholding dismissal after plain-



2
  This concession puts defendants Ruiz and Wexford in a
precarious position regarding their contention on appeal that
Dr. Lewan’s testimony did remain barred. Their argument in
this regard is even more troubling given that the district
judge’s reading of the earlier order only made sense on ac-
count of his mistaken belief that Dr. Garcia was Gabriel’s
expert witness, not his treating physician. Moreover, trial
counsel for Ruiz and Wexford—the same attorneys who now
represent them on appeal—also represented Dr. Garcia in his
deposition in this matter. Unlike the district court, they cannot
possibly claim confusion about which doctor was the expert
and which the deponent; they have no business arguing that
Dr. Lewan’s testimony remained barred.
No. 06-3636                                                 7

tiff ’s counsel failed to appear at four status hearings and
then failed to comply with two discovery orders despite
explicit warnings that noncompliance would result in
dismissal).
   Relying on Moffitt, the defendants maintain dismissal is
justified even absent a pattern of delay when a plaintiff
refuses to go to trial without a key witness. In Moffitt,
plaintiff ’s counsel repeatedly sought a continuance in the
weeks before trial because of his inability to locate his
client. 236 F. 3d at 869-70. The court twice denied re-
lief and stated that counsel must substantiate the plain-
tiff ’s unavailability. Id. On the first day of trial, counsel
again sought a continuance, this time providing evidence
that his client had checked herself into a drug-treatment
program. Id. at 870. After the court denied a continuance
and a subsequent motion to reconsider, counsel refused
to proceed with trial despite warnings that dismissal
would result. Id. The court dismissed the case for want
of prosecution, citing counsel’s failure to demonstrate
why he could not proceed using the plaintiff ’s deposition
testimony and numerous other available witnesses. Id. at
871. In upholding the dismissal, this court concluded
plaintiff ’s counsel had failed to respond to the district
court’s repeated requests for more information regard-
ing the plaintiff ’s availability and failed to demonstrate
why he could not proceed with the available evidence,
including the plaintiff ’s deposition testimony. Id. at 876.
  The defendants read Moffitt too broadly, overlooking
key factual differences making its holding inapplicable
here. Unlike the plaintiff in Moffitt, Gabriel made no prior
requests for continuances, and thus received no prior
warnings from the court about its willingness (or unwill-
ingness) to entertain the requested relief. Gabriel also
made a clear showing—one the court accepted—that
Dr. Lewan was both central to his case and unavailable
because of the eleventh-hour schedule change. It is true
that Gabriel could have protected against this con-
8                                                   No. 06-3636

tingency by preserving Dr. Lewan’s testimony in a trial
deposition, but the doctor had been available to testify
in person on the previously scheduled trial dates and did
not become unavailable until the court changed the trial
schedule with only a single week’s notice, making Gabriel’s
failure to take this extra step understandable. Moreover,
Moffitt did not hold that trial depositions are a required
precaution, but rather only that depositions may pre-
sent a viable alternative if a witness becomes unavail-
able on the eve of trial. Unlike in Moffitt, Gabriel was
entirely prepared to proceed with trial as scheduled
until that schedule was altered on short notice by events
beyond his control. In these circumstances, his failure to
undertake the nonessential measure of preserving his
expert’s trial testimony by deposition does not justify the
harsh sanction of dismissal.
  The district court could not cite any pattern of delay or
contumacious conduct by Gabriel because neither exists;
the only delays attributable to him were during discovery,
and those delays were excused by court order with no
mention of possible future sanction.3 Indeed, once discov-
ery was completed, Gabriel was the only party available
and prepared to proceed on every previously scheduled trial
date.4 Because Gabriel had neither caused nor sought any


3
 Of note, Gabriel’s motion seeking additional time to depose
Dr. Garcia also contained evidence demonstrating counsel for
Dr. Garcia (who, as we have noted, also represent Ruiz and
Wexford) was not blameless in that delay.
4
  Ruiz and Wexford’s assertion on appeal that Gabriel had no
expert witness and was completely unprepared for trial is
demonstrably false. Dr. Lewan’s testimony, which all parties
conceded in the district court was no longer barred, had been
scheduled for the July, August, and initial September trial dates.
The plaintiff ’s video deposition had been taken in advance
                                                   (continued...)
No. 06-3636                                                9

previous delay, the court gave no warnings of pos-
sible sanctions and pursued no lesser alternatives before
resorting to dismissal. Where, as here, there is no pattern
of delay, missed deadlines, noncooperation, or other
litigation misconduct on the part of the plaintiff, and the
imposition of sanctions is premised on a misreading of
the record, dismissal is unwarranted and an abuse of
discretion. This is particularly so where there is no
claim that a continuance would prejudice the defendants,
who themselves had previously sought and obtained a
trial continuance. Accordingly, the district court’s order
dismissing Gabriel’s case for want of prosecution is
REVERSED, and the case is REMANDED for further pro-
ceedings.

A true Copy:
      Teste:

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




4
   (...continued)
(he was no longer in the country and thus could not provide
live testimony), and testimony by video feed had been secured
for numerous other witnesses.


                    USCA-02-C-0072—2-1-08
