               Case: 16-16331      Date Filed: 10/19/2017   Page: 1 of 5



                                                               [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 16-16331
                               Non-Argument Calendar
                             ________________________

                        D.C. Docket No. 2:15-cv-00134-RWS

MAJOR FORTSON,
LAURA FORTSON,

                                                                Plaintiffs-Appellants,

                                          versus

CITY OF BALDWIN,
JERRY NEACE,
in his official and individual capacities,
JOE DAVIDSON,
in his official and individual capacities, et al.

                                                               Defendants-Appellees.
                             ________________________

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

                                   (October 19, 2017)
                Case: 16-16331       Date Filed: 10/19/2017       Page: 2 of 5


Before JORDAN, ROSENBAUM and ANDERSON, Circuit Judges.

PER CURIAM:

       Major and Laura Fortson, two individuals proceeding pro se, appeal the

district court’s dismissal of their 42 U.S.C. § 1983 complaint as a sanction for

misconduct in discovery. 1 On appeal, the Fortsons argue that the district court was

without authority to dismiss their constitutional claims based on their failure to

comply with discovery requests and procedural rules. As discussed below, we

affirm the district court.

       We review the district court’s decision to dismiss a case based on discovery

misconduct and failure to comply with court rules for an abuse of discretion.

Wouters v. Martin Cty., 9 F.3d 924, 929 (11th Cir. 1993); Zocaras v. Castro, 465

F.3d 479, 483 (11th Cir. 2006). “Discretion means the district court has a ‘range of

choice, and that its decision will not be disturbed as long as it stays within that

range and is not influenced by any mistake of law.’” Zocaras, 465 F.3d at 483

(quoting Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th

Cir. 2005)). We review the district court’s findings of fact for clear error. Id.

       Pro se parties are subject to the Federal Rules of Civil Procedure and other

court rules. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). The Rules
1
 The Fortsons also purport to appeal the district court’s dismissal of Defendant Robert A. Snead
based on judicial immunity. But they fail to include an argument regarding this issue in their
brief. The Fortsons have therefore abandoned their appeal of this issue. See Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam) (“[I]ssues not briefed on appeal by a
pro se litigant are deemed abandoned.”).
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provide for sanctions, including dismissal of an action, when a party fails to obey a

discovery order or serve its answers to interrogatories. Fed. R. Civ. P.

37(b)(2)(A)(v), (d)(1)(A)(ii), (d)(3). A district court may also dismiss an action

based on the plaintiff’s failure to comply with court rules. Fed. R. Civ. P. 41(b).

But “[d]ismissal of a case with prejudice is considered a sanction of last resort,

applicable only in extreme circumstances.” Zocaras, 465 F.3d at 483 (alteration in

original) (quoting Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985)).

Before dismissing an action, a district court must find that the plaintiff’s failure

was willful or in bad faith and that lesser sanctions would not have sufficed. See

Wouters, 9 F.3d at 933–34.

      Here, the district court did not abuse its discretion by dismissing the

Fortsons’ claims with prejudice. First, the record supports the district court’s

finding that the Fortsons willfully failed to adequately respond to discovery. The

court warned the Fortsons that it could dismiss their complaint for failure to

comply with the Federal Rules of Civil Procedure and other court rules. And

Defendants’ counsel directed the Fortsons to Federal Rules of Civil Procedure 33,

34, and 37. Yet the Fortsons failed to respond to Defendants’ interrogatories and

requests for production beyond referring Defendants to their complaint and

attached exhibits. The court then specifically ordered the Fortsons to respond to

Defendants’ discovery requests and reminded them that failure to do so could


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result in dismissal of the action. The Fortsons again responded to many of the

requests by generally referring Defendants to their previous filings in this action.

      The Fortsons do not offer an explanation for their failure to comply with the

discovery requests or the district court’s order. Rather, they appear to argue that

the district court abused its discretion by dismissing their action because of the

merits of their constitutional claims. But “the probable merit of a litigant’s case

does not preclude the imposition of” sanctions for a failure to comply with

discovery orders or court rules. Malautea v. Suzuki Motor Co., Ltd., 987 F.2d

1536, 1544 (11th Cir. 1993). Regardless of the Fortsons’ likelihood of success on

the merits, the district court was authorized to sanction the Fortsons for their

failure to cooperate with discovery and obey its orders. See Fed. R. Civ. P.

37(b)(2)(A)(v), (d)(1)(A)(ii), (d)(3).

      Additionally, the record supports the district court’s finding that lesser

sanctions than dismissal would have been ineffective. The Fortsons’ filings in the

district court and this Court demonstrate their unwillingness to comply with

procedural rules. The district court concluded that Defendants were prejudiced by

the Fortsons’ noncompliance. Given the Fortsons’ failure to obey the district

court’s multiple warnings, the district court did not abuse its discretion by failing

to impose lesser sanctions before dismissing the action. Malautea, 987 F.2d at 1544




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(recognizing that Rule 37 does not require “the vain gesture” of imposing

ineffective lesser sanctions before dismissing an action). Accordingly, we affirm.

      AFFIRMED.




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