              Case: 17-13954     Date Filed: 02/14/2019    Page: 1 of 7


                                                               [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 17-13954
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:14-cv-23204-JLK



NAJIB MALIK,

                                                                  Plaintiff-Appellant,

                                      versus

WEXFORD HEALTH SERVICES, INC.,

                                                                           Defendant,

DORA GAXIOLA,
Chief Health Officer at Everglades Correctional Institution
who superseded in the place of Carl Balmir,
OSCAR ORTEGA,
Medical Doctor at Everglades Correctional Institution,
MARIA LOUISSAINT,
A.R.N.P., at Everglades Correctional Institution,
RICK ROWE,
Everglades Correctional Institution, sued in their individual and official capacity,
DANIEL L. CONN,
Wexford Health Serv. Inc., et al.,

                                                              Defendants-Appellees.
              Case: 17-13954      Date Filed: 02/14/2019   Page: 2 of 7


                            _______________________

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

                                 (February 14, 2019)

Before MARTIN, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM:

      Najib Malik, a Florida prisoner proceeding pro se, appeals the district

court’s dismissal of his complaint with prejudice and denial of his Fed. R. Civ. P.

60 motion for reconsideration. First, he argues that the district court abused its

discretion in dismissing his complaint for his failure to participate in his deposition

because he did not act in bad faith. Second, he contends that the district court

abused its discretion in denying his motion for reconsideration because he showed

that he had kidney failure and was not feigning illness at his deposition. Finding

no abuse of discretion by the district court, we affirm.

                                           I

      We review a district court’s dismissal under Fed. R. Civ. P. 37(b) for abuse

of discretion. See Aztec Steel Co. v. Fla. Steel Corp., 691 F.2d 480, 481 (11th Cir.

1982). If a party fails to obey an order to provide or permit discovery, a district

court may impose a variety of penalties, including dismissal of the action in whole

or in part. See Tobinick v. Novella, 848 F.3d 935, 949 (11th Cir.), cert. denied, 138


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S. Ct. 449 (2017); Fed. R. Civ. P. 37(b). A district court may dismiss an action

when a party displays “willfulness, bad faith[,] or disregard of responsibilities” or

“flagrant disregard for the court and the discovery process.” Aztec Steel, 691 F.2d

at 481. In reviewing the district court’s decision, we consider “whether a less

drastic but equally effective remedy could have been fashioned.” Id. at 481–82.

That being said, “[t]he standard of review for a Rule 37(b) dismissal is not whether

the reviewing court would, as an original matter, have dismissed the action; it is

whether the district court abused its discretion in dismissing the action.” Id. at 481.

      Here, the district court did not abuse its discretion in dismissing Malik’s

complaint with prejudice. After the court allowed Malik two years and four

attempts to file a properly-pleaded complaint, Malik failed to meaningfully

participate in his deposition, even after the district court warned him that his failure

to do so could “result in the imposition of sanctions, including dismissal of [his]

action.” Specifically, Malik refused to answer counsel’s questions early in the

deposition, including in the following exchanges:

      Stinson:             Is Defendant’s Exhibit Number 40 a refusal of all
                           medical services?

      Malik:               I’m not going to answer no more about this refusal,
                           please. You need to move onto something else.

                                      ***

      Stinson:             Is Defendant’s Exhibit Number 41 a refusal of an
                           increase or change of hypertension medication?
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      Malik:              I’m not going to answer that.

      Stinson:            This will be the last time that I ask you this question,
                          Mr. Malik?

      Malik:              Yes, ma’am.

      Stinson:            For the third time, is Defendant’s Exhibit Number
                          41 a refusal of an increase or change of hypertension
                          medication?

      Malik:              No, I’m not going to answer that, ma’am.

Soon after these responses, Malik began complaining that he was experiencing

chest tightness and informed counsel that he was “burning up with a fever.”

Counsel then ended the deposition.

      After the failed deposition, the defendants moved to dismiss the case for

Malik’s failure to participate in discovery. In support of their motion, the

defendants provided an affidavit by Dr. Maier, a Florida Department of

Corrections physician, stating that Malik’s medical records showed that, although

he had reported to the nurse on the morning of his deposition, his vital signs had

been normal and there were no signs of respiratory distress or fever. Dr. Maier

also stated that, although Malik complained of various medical conditions in the

days following the deposition, his vital signs were consistently normal and he did

not have a temperature.




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       The magistrate judge determined that, given Malik’s initial resistance to the

deposition and his subsequent behavior at the deposition, he had attempted “to

derail the Defendants’ efforts to conduct discovery and prepare the case for

dispositive resolution” and “to hinder and/or otherwise impede the discovery

process.” The magistrate judge recommended that the case be dismissed under

Fed. R. Civ. P. 37, and the district court agreed.

       Although dismissal is a harsh remedy, our review does not extend to whether

we would, as an original matter, have dismissed this action but only to whether the

district court abused its discretion in so doing. The record in this case does not

indicate that the district court abused its discretion in determining that, by refusing

to cooperate in his deposition, Malik displayed “flagrant disregard for the court and

the discovery process.” Aztec Steel, 691 F.2d at 481. Accordingly, we affirm as

to this claim.

                                                II

       We also review the denial of a Fed. R. Civ. P. 60 motion for relief from

judgment for abuse of discretion. 1 Kolawole v. Sellers, 863 F.3d 1361, 1366 (11th



1
  Although Malik’s brief does not clearly challenge the district court’s denial of his motion for
reconsideration, it does argue that the district court should not have dismissed the case because
of his (later-discovered) kidney problems. We liberally construe this argument as challenging
the denial of his motion for reconsideration for newly discovered evidence. United States v.
Hung Thien Ly, 646 F.3d 1307, 1316 (11th Cir. 2011) (“[W]e read pro se briefs liberally to
ensure that such litigants do not, through their ignorance of legal terminology, waive claims.”).

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Cir. 2017). Rule 60 provides that a district court may relieve a party from a final

judgment for, among other things, newly discovered evidence. See Fed. R. Civ. P.

60(b)(2). To obtain relief on this ground, a plaintiff must show that: (1) the

evidence is newly discovered; (2) he exercised due diligence to discover the

evidence; (3) the evidence is not merely cumulative or impeaching; (4) the

evidence is material; and (5) the evidence would likely change the outcome. See

Waddell v. Hendry Cty. Sheriff’s Office, 329 F.3d 1300, 1309 (11th Cir. 2003).

       The district court did not abuse its discretion in denying Malik’s motion for

reconsideration. Malik’s objection to the magistrate judge’s Report and

Recommendation was supported only by his bare allegation that he had recently

been diagnosed with kidney failure. Although Malik attached lab results with

certain numbers circled to his objections, he did not in any way explain the

numbers, nor did he produce any documents showing that he had kidney failure. 2

Accordingly, Malik did not demonstrate that the evidence was material or would




2
  Malik also argues that the district court abused its discretion in imposing monetary sanctions
against him because he was indigent and did not have the ability to pay. Because Malik did not
object to the defendants’ motion for monetary sanctions before the district court and raises this
issue for the first time on appeal, this argument is likely abandoned. See Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). In any event, our precedent does not
prohibit the imposition of sanctions against a pro se litigant proceeding in forma pauperis. See,
e.g., Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (“If a pro se litigant ignores a
discovery order, he is and should be subject to sanctions like any other litigant. Courts can
assess costs and monetary sanctions against IFP litigants.”).

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change the outcome of the case and the district court did not abuse its discretion in

denying his motion.

      AFFIRMED.




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