Evans v. Griffin

Dist. Ct. did not err in dismissing plaintiff-prisoner’s section 1983 action alleging that defendants-prison officials were deliberately indifferent to his nasal polyps condition, where said dismissal was sanction for plaintiff’s failure to participate in his own discovery deposition. Plaintiff claimed that at time defendants came to prison to take his deposition he had not yet received defendants’ notice to take his deposition that was mailed five days prior to defendants’ appearance at prison, and that he was unprepared to participate in his own deposition at that time. Moreover, Dist. Ct. could not base dismissal on violation of Rule 37(d), since: (1) taking facts most favorable to plaintiff, plaintiff had not been served with notice of deposition at time defendants came to take his deposition; and (2) other cases involving prison litigants contained evidence that there is typical delay in distributing mail to prisoners. Also, without plaintiff receiving proper notice of deposition, sanctions were not appropriate under Dist. Ct.’s inherent authority, since defendant was not required to sit for what amounted to be surprise-attack deposition.