                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               Sept. 23, 2009
                                No. 09-11070                 THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                  D. C. Docket No. 06-00405-CV-FTM-99-DNF

NOEL CLARK, JR.,
BETSY LYNN CALLAWAY,

                                                            Plaintiffs-Appellants,

                                     versus

Vernon Keen, et al.,

                                                                     Defendants,

CURT MAYS,
DEK LIVINGSTON,
DUANE RANDALL MORGAN,
PATTY WILLIAMS,
FRANK RIBEL, JR., et al.,

                                                            Defendants-Appellees.
                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                              (September 23, 2009)
Before BIRCH, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

      Noel Clark and Betsy Callaway, proceeding pro se, appeal the district

court’s order dismissing with prejudice their civil rights action as a sanction for

failing to comply with discovery orders. On appeal, Clark and Callaway argue

that: (1) the district court abused its discretion when it dismissed their case; (2) and

the magistrate was biased against them because they were pro se litigants. After

careful review, we affirm.

      Our review of “sanctions under Rule 37 is sharply limited to a search for an

abuse of discretion and a determination that the findings of the trial court are fully

supported by the record.” Serra Chevrolet, Inc. v. General Motors Corp., 446 F.3d

1137, 1146-47 (11th Cir. 2006) (citation and brackets omitted). The question on

review “is not whether [we] would, as an original matter, have dismissed the

action; it is whether the district court abused its discretion in dismissing the

action.” Aztec Steel Co. v. Florida Steel Corp., 691 F.2d 480, 481 (11th Cir. 1982)

(citing Nat’l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 642 (1976)).

      The Federal Rules of Civil Procedure authorize that “[i]f a party . . . fails to

obey an order to provide or permit discovery,” the presiding district court “may

issue further just orders,” including an order “dismissing the action or proceeding.”



                                           2
Fed.R.Civ.P. 37(b)(2)(A)(v). We have recognized that “[d]ismissal with prejudice

is the most severe Rule 37 sanction and is not favored . . . [b]ut, dismissal may be

appropriate when a plaintiff’s recalcitrance is due to wilfulness, bad faith or fault.”

Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir. 1993). Dismissal is not an abuse of

discretion “[w]hen a party demonstrates a flagrant disregard for the court and the

discovery process.”     Aztec Steel, 691 F.2d at 481.         On the other hand, a

“[v]iolation of a discovery order caused by simple negligence, misunderstanding,

or inability to comply will not justify a Rule 37 . . . dismissal.” Malautea v. Suzuki

Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993).           In reviewing whether the

district court properly dismissed the action, “one consideration is whether a less

drastic but equally effective remedy could have been fashioned.” Aztec Steel, 691

F.2d at 481-82.

      The district court did not abuse its discretion when it dismissed Clark and

Callaway’s case. Here, the district court warned Clark and Callaway that “any

further actions on their part which demonstrates a lack of diligence in prosecuting

this action or a failure to comply with their obligations will result in a dismissal of

their case.” In their responses to the Defendants’ attempts to schedule depositions,

Clark and Callaway did not offer any reasons why they could not provide

depositions at the suggested times. Instead, Clark and Callaway stated that they



                                           3
would only schedule depositions on the same day Defendant Keen agreed to be

deposed. Clark and Callaway’s demand came after the district court ruled that

Keen did not have to be deposed. Because, as the district court found, Clark and

Callaway willfully failed to comply with the court’s discovery orders, the court did

not abuse its discretion when it dismissed their case as a sanction.

       In addition, since Clark and Callaway never sought district court review of

the magistrate’s refusal to disqualify himself, we do not have jurisdiction to review

the magistrate’s decision. United States v. Renfro, 620 F.2d 497, 499 (5th Cir.

1980).1 But even if we were to reach the merits of this claim, a claim of bias on the

part of the magistrate judge would not excuse a plaintiff’s failure to comply with

discovery, or prove that the district judge’s selection of a discovery sanction

amounted to an abuse of discretion.

       AFFIRMED.




       1
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.

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