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

No. 02-1604
JOE RICE,
                                               Plaintiff-Appellant,
                                 v.

THE CITY OF CHICAGO, et al.,
                                            Defendants-Appellees.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
         No. 98 CV 7949—Robert W. Gettleman, Judge.
                          ____________
    ARGUED OCTOBER 16, 2002—DECIDED JUNE 24, 2003
                    ____________


 Before COFFEY, RIPPLE, and WILLIAMS, Circuit Judges.
  COFFEY, Circuit Judge. Joe Rice (“Rice”), with five
other plaintiffs, filed suit against the City of Chicago
and several Chicago police officers on December 11, 1998.
They alleged that the defendants had violated their
civil rights six months earlier, on June 14, 1998, the eve-
ning the Chicago Bulls’ victory in the NBA Champion-
ship Finals sparked riotous celebrations throughout the
Chicago area.
  On March 7, 2002, the district court dismissed Rice as
a plaintiff from the suit because Rice’s attorney had
allegedly failed to comply with several court-imposed
2                                                 No. 02-1604

deadlines relating to discovery requests.1 Rice appeals,
arguing that dismissal of his case was unwarranted
and unfair, given the City’s own dilatory tactics. We agree
that the district judge abused his discretion in dismissing
Rice’s case. The attorneys for the City of Chicago were
as guilty as Rice’s attorney of disobedience of court or-
ders, and we believe that the sanction of dismissal is
not warranted in this instance. Thus, we remand for fur-
ther proceedings consistent with this opinion.


              I. FACTUAL BACKGROUND
  Rice alleges that on the evening of June 14, 1998, he
was riding around the City of Chicago celebrating the
Bulls’ victory over the Utah Jazz in the NBA Finals.
Rice, who was 14 years old at the time, was riding on
the roof of an automobile which was carrying nine
other revelers. Two of the other occupants were riding
in the vehicle’s open trunk.
  Just after the auto stopped in front of a liquor store
near the intersection of Roosevelt Road and Springfield
Avenue, Rice claims that several officers approached the
vehicle, one of whom began making racial comments
intended for the car’s occupants. This officer then al-
legedly cursed at Rice and his friends, and ordered them
to leave the area at once under the pretext that the
store was closed (Rice maintains that the store was not,
in fact, closed). Rice further alleged that an officer, without
justification, then started to spray Rice and the other
occupants of the car with mace. Finally, Rice claims that



1
   Rice was the only plaintiff to be dismissed. The other plain-
tiffs met the relevant discovery deadlines and their claims
proceeded under a case entitled Brown v. City of Chicago, 98 C
3763.
No. 02-1604                                                3

several officers then began discharging their weapons at
the car, again without any provocation, and that Rice
and several of the other occupants suffered injuries.
   On December 11, 1998, Rice and five other occupants
of the car filed a civil rights lawsuit against the individ-
ual defendant officers and the City of Chicago. The plain-
tiffs claimed, inter alia, that the individual defendant
officers had used excessive force against them on the
evening of June 14, 1998, and that the City’s policies
and practices were a proximate cause of their injuries.
The case was initially dismissed for want of prosecution
on July 26, 2000, but on plaintiffs’ motion, the court va-
cated the dismissal and reinstated the lawsuit in Septem-
ber 2000.
  On May 30, 2001, the officers served interrogatories
and document requests upon the plaintiffs, including
Rice. The responses were due on June 29. Rice, through
his attorney David A. Cerda, served the officers with
objections to their discovery requests on July 2, but
failed to complete all of the answers to the interrogatories.
On August 23, Magistrate Judge Edward A. Bobrick, to
whom the court had assigned discovery matters, ordered
Rice’s attorney to make full responses by September 28,
and warned him that the failure to do so would result in
the dismissal of Rice’s case.
   Attorney Cerda failed to respond to the discovery re-
quests within this court-imposed deadline. The court
extended another opportunity to Cerda to comply with
the court’s discovery order, warning that Rice’s case
would be dismissed if Cerda failed to provide complete
responses to the defendants’ interrogatories by October
26, 2001. On October 30, the defendants received an
envelope (postmarked October 29) with interrogatories
that were not only late, but also incomplete and not veri-
fied by Rice himself.
4                                             No. 02-1604

  At a hearing on the motion on November 5, Cerda
explained that the October 29 postmark resulted from
his mailing of the responses after 5:00 p.m. on Friday,
October 26. Cerda also stated that the reason he could
not locate Rice was because the plaintiff had been con-
fined in the Cook County Jail under the name Joe Moore.
Cerda further explained that when he met with Rice at
the jail on October 25, Cerda asked his client whether he
could read and understand his answers to the interrog-
atories if they were typed for him. When Rice replied
that he was illiterate, Cerda decided not to pursue the
matter any further (e.g., possibly certifying Rice’s re-
sponses after reading them back to Rice and explaining
them to him).
   At a hearing on February 6, 2002, the district court
considered the magistrate judge’s recommendation that
Rice’s case be dismissed. The district judge noted that
the basis for the magistrate’s recommendation of dis-
missal was that Rice had disobeyed the magistrate’s
discovery orders on two separate occasions. The plaintiff’s
motion for reconsideration was denied, and the court
entered final judgment dismissing Rice as a party plain-
tiff, against the individual defendant officers as well as
the City of Chicago, on March 7, 2002.
  But this is only half the story. During the last three
months of 2001, the attorneys representing the City of
Chicago consistently and repeatedly stonewalled the
plaintiff’s attempts to conduct depositions. This pattern
of conduct persisted even in the face of explicit court or-
ders ordering both parties to comply with the discovery
requests. On August 23, 2001, for example, the magistrate
ordered the plaintiffs’ depositions to be completed by
January 15, 2002. The defendants’ attorneys, however,
repeatedly insisted that they were too busy to schedule
depositions during the months of October, November,
and December.
No. 02-1604                                              5

   On December 11, the plaintiffs filed a Motion to Com-
pel Discovery after defendants had failed to respond to
plaintiffs’ numerous requests for a conference to discuss
deficiencies in the defendant officers’ interrogatory re-
sponses. On January 2, 2002, plaintiffs argued a Motion
to Compel Depositions before the court because the plain-
tiffs’ January 15 deadline for depositions was approach-
ing and the defendants still had refused to schedule a
single deposition. The magistrate subsequently ordered
the depositions of the plaintiffs and the defendants to
be completed by March 11. On January 22, plaintiffs filed
another Motion to Compel Depositions because the de-
fendants had continued their pattern of remaining ada-
mant in their position and continued to refuse to sched-
ule any depositions. On February 5, the plaintiffs again
filed a Motion to Compel because the City’s counsel
claimed to be too busy to produce non-party police officer
witnesses for depositions. All of the aforementioned
delays occurred prior to the March 7, 2002, entry of final
judgment dismissing Rice as a party plaintiff. Obviously,
neither party to this litigation stood before the court
with clean hands.


                   II. DISCUSSION
  We review the district court’s imposition of sanctions
for discovery violations, including dismissal of the case
with prejudice, under the abuse of discretion standard.
Dotson v. Bravo, 321 F.3d 663, 666 (7th Cir. 2003); accord
Jimenez v. Madison Area Technical College, 321 F.3d
652, 657 (7th Cir. 2003). As our case law makes very clear,
however, this standard “is not without teeth.” Salgado
v. General Motors Corp., 150 F.3d 735, 739 (7th Cir. 1998);
see also, e.g., Grun v. Pneumo Abex Corp., 163 F.3d 411,
425 (7th Cir. 1998) (reversing a dismissal because the
“facts fail[ed] to evidence a clear record of delay or con-
6                                              No. 02-1604

tumacious conduct,” despite the plaintiff’s failure to pros-
ecute the case for three years); GCIU Employer Retire-
ment Fund v. Chicago Tribune Co., 8 F.3d 1195, 1199 (7th
Cir. 1993) (reversing a dismissal when the litigant had
failed to advise the court on the status of settlement
negotiations during a 22-month period); Del Carmen v.
Emerson Electric Co. Commercial Cam Div., 908 F.2d 158,
163 (7th Cir. 1990) (reversing a dismissal that had been
based on the failure of the plaintiff’s counsel to attend a
status conference).
   “The drastic nature of a dismissal with prejudice re-
quires the action to 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
unavailable.” 8 F.3d at 1199 (internal quotations omit-
ted); cf. Long v. Steepro, 213 F.3d 983, 986 (7th Cir. 2000)
(“[The] ultimate sanction is reserved for cases in which
the offending party has demonstrated wilfulness, bad
faith, or fault.”). “In determining whether the sanction of
dismissal constituted an abuse of discretion, we look at
the entire procedural history of the case.” Long, 213 F.3d
at 986; accord Grun, 163 F.3d at 425. Although there is
no requirement that the district court select the “least
drastic” sanction, district courts should only impose sanc-
tions that are “proportionate to the circumstances sur-
rounding a party’s failure to comply with discovery rules.”
Melendez v. Illinois Bell Tel. Co., 79 F.3d 661, 672 (7th
Cir. 1996). Among the factors included in the analysis
are “the frequency and magnitude of the [party’s] fail-
ure to comply with court deadlines, the effect of these
failures on the court’s time and schedules, the prejudice
to other litigants, and the possible merits of the plain-
tiff’s suit.” Williams v. Chicago Bd. of Educ., 155 F.3d
853, 857 (7th Cir. 1998).
  Turning to the record in the case before us, the court
reasoned that dismissal was warranted because Rice had
No. 02-1604                                                      7

repeatedly refused to obey “orders by the magistrate
judge to comply with his discovery obligations.” Although
it is true that Rice failed to meet three separate dead-
lines to file his interrogatory responses,2 the judge over-
looked the fact that the City’s attorneys were equally
disrespectful of the court’s orders, effectively giving them
a pass—for reasons unexplained in his decision. Their
conduct with respect to requests to conduct deposi-
tions, described in detail above, can best be described
as dilatory and disrespectful to the court. We thus con-
sider the defendants’ stated concern about the plaintiffs’
conduct causing harm to the district court3 disingen-
uous and rife with irony. If the City was genuinely con-
cerned about wasting the court’s time, its attorneys
would not have repeatedly engaged in the same type of
disrespectful, careless, negligent, and evasive behavior
that required the court to intervene in four discovery
disputes in less than two months. It was the City’s dila-
tory conduct—not Rice’s—that ultimately resulted in a
three month postponement of the plaintiffs’ depositions.4
If the defendants’ attorneys were as busy as they
claimed, the City should have retained outside counsel.
  Particularly in this litigious age, court dockets are all
too frequently overloaded. Time is no less valuable to a
court than it is to an attorney. The court must set pre-



2
  Rice failed to meet the initial June 29, 2001, deadline, pursuant
to Fed. R. Civ. P. 33(b)(3), and thereafter the court ordered
deadlines of September 28 and October 26.
3
  During oral argument the Corporation Counsel for the City
of Chicago conceded that the defendants were not prejudiced,
but claimed that, “The prejudice here was to the district court.”
4
  On August 23, 2001, the magistrate ordered the plaintiffs’
depositions to be completed by January 15, 2002. However, it
was mid-April before all of the plaintiffs were deposed.
8                                                   No. 02-1604

scribed times, dates, and deadlines, and the attorneys
must respect and comply with these deadlines, which
need to be enforced if the court is going to properly man-
age its calendar. Although we hold that it was most
proper for the district court to admonish Rice’s attorney
for failing to meet discovery deadlines5 and not verify-
ing Rice’s answers to the interrogatories,6 we conclude
that the dismissal of Rice as a party plaintiff was an
abuse of discretion because, when we review the sanction
in light of the entire procedural history of this case (and
the disrespectfulness to the court displayed by the liti-
gants in this case), as we are required to do, see Grun,
163 F.3d at 425, it is apparent that both attorney Cerda
as well as the attorneys for the defendants were equally
careless and negligent in complying with their discovery
obligations. Thus, as we pointed out earlier, neither the
City of Chicago nor the officers came before this Court
with clean hands. Furthermore, we find no merit behind
the City’s assertion that Rice demonstrated bad faith or
fault worthy of the ultimate sanction of dismissal. See
Long, 213 F.3d at 987 (defining “fault” in the context
of discovery sanctions as “objectively unreasonable be-
havior; it does not include conduct that we would classify
as a mere mistake or slight error in judgment”); Mar-
rocco v. General Motors Corp, 966 F.2d 220, 224 (7th Cir.
1992) (defining “bad faith” as conduct which is “intentional
or in reckless disregard of a party’s obligations to com-
ply with a court order”). On the two occasions Rice failed


5
  If Rice’s attorney was legitimately unable to meet the three
separate and distinct deadline dates, months apart, to file Rice’s
interrogatory responses, he should have raised the problem
with the court before the relevant deadlines.
6
  Rice’s attorney could very easily have read and explained
the content of the responses to Rice and then request that
he affirm them.
No. 02-1604                                               9

to comply with court ordered deadlines, there is nothing
in the record that would justify classifying the plaintiff’s
attorney as “recklessly” disregarding his obligation to
comply with a court order, as he filed an appropriate mo-
tion or the necessary papers within one week.7
  It also would have been most helpful if the court had
seen fit to consider and explain why lesser sanctions
would not have been more appropriate. The defendants
argue that there is no requirement in this circuit that
district courts consider imposing lesser sanctions. The
defendants contend that an explicit warning by the court
is the only prerequisite before dismissing a party, and
further note that the magistrate twice warned Rice that
his failure to comply with court orders would result in
dismissal.
  While it is true that there is no requirement for dis-
trict courts to impose graduated sanctions, Ball v. City
of Chicago, 2 F.3d 752, 756 (7th Cir. 1993), it is well set-
tled in this circuit that the ultimate sanction of dismissal
should be involved “ ‘only in extreme situations, when
there is a clear record of delay or contumacious conduct,
or when other less drastic sanctions have proven unavail-
able.’ ” Grun, 163 F.3d at 425 (quoting Pyramid Energy
Ltd. v. Heyl & Patterson, Inc., 869, F.2d 1058, 1061 (7th
Cir. 1989)); accord GCIU Employer Retirement Fund, 8
F.3d at 1199; Del Carmen, 908 F.2d at 162; Schilling
v. Walworth County Park & Planning Comm’n, 805 F.2d
272, 278 (7th Cir. 1986). As previously explained, Rice’s
tardy compliance with court orders did not contribute to
a delay in discovery and, in light of evasive behavior



7
  When Cerda missed the September 28, 2001, deadline to file
Rice’s interrogatory responses, he moved for an extension on
October 3. When Rice was ordered to answer interrogatories
by October 26, 2001, he responded on October 30.
10                                              No. 02-1604

exhibited by the City’s attorneys, it would be unjust to
characterize Rice’s conduct as obstinately disobedient.
Therefore, contrary to the defendants’ assertion, we are
of the opinion that when considering the present factual
history—where both of the litigants failed to respect
and comply with court imposed discovery time-lines—the
court abused its discretion by imposing a sanction on
only one of the malefactors, especially when the sanc-
tion employed is dismissal. As we said in Ball, where an
attorney is clearly at fault:
     [A] judge should give serious consideration to punish-
     ing the lawyer through a fine, an award of costs and
     attorney’s fees to opposing counsel (the costs and fees
     to be paid by the plaintiff’s lawyer, not the plaintiff)
     pursuant to Fed. R. Civ. P. 16(f), a citation for con-
     tempt, and professional discipline, rather than punish-
     ing the plaintiff through dismissal of the suit.
Ball, 2 F.3d at 758.
  We conclude that the judge’s imposition of the ultimate
sanction of dismissal was an improper exercise of the
district court’s powers, when considering the complete
record of the case before us, as we must. Both the appel-
lant and the appellees were guilty of flagrantly disre-
garding discovery time-lines and refusing to pay heed
to court orders. Moreover, because it was the attorneys
and not the parties themselves who were at fault, the
court should have considered the appropriateness of
targeting the attorneys with lesser sanctions, such as a
fine or costs to the other party. Of course, “the trial court
has an intimate familiarity with the relevant proceed-
ings [and] is better situated than the court of appeals to
marshal the pertinent facts”; thus, whether to impose
sanctions and, if so, what form the sanctions will take, is
a decision we leave to the district court. Jimenez, 321
F.3d at 656 (citations and internal quotations omit-
No. 02-1604                                                11

ted). However, we again emphasize “[t]he well-established
public policy favoring hearing cases on the merits . . . .” 908
F.2d at 163. This policy dictates that the harsh sanction
of dismissal be employed only as a last resort. GCIU
Employer Retirement Fund, 8 F.3d at 1199 (“The drastic
nature of a dismissal with prejudice requires the action
to be used only in extreme situations . . . .”). This is not
one of those cases where dismissal was warranted. Ac-
cordingly, we REVERSE the district court’s decision to
dismiss Rice as a party plaintiff and REMAND the case
for further proceedings consistent with this opinion.

A true Copy:
       Teste:

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




                    USCA-02-C-0072—6-24-03
