Robert A. Austin v. City of Chicago

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 19, 2023 *
Decided January 20, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22‐1509
ROBERT A. AUSTIN,
Plaintiff‐Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 18 C 07268
Thomas M. Durkin,
Judge.
O R D E R
Robert Austin appeals the dismissal of his case as a sanction for his litigation
misconduct. The district court warned Austin no fewer than six times that it would
dismiss the case unless he complied with discovery rules and its orders. When Austin
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C)
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

-- 1 of 4 --

No. 22‐1509 Page 2
persisted in his misconduct, the court dismissed the case under its inherent power.
Because the court did not abuse its discretion, we affirm.
Austin sued the City of Chicago and several police officers who had arrested him
for sexual abuse and kidnapping. (Charges were filed but later dropped.) Austin’s
amended complaint included claims against the officers under 42 U.S.C. § 1983 and
Illinois tort law and against the City under Monell v. Department of Social Services,
436 U.S. 658 (1978). While the defendants’ partial motion to dismiss was pending, the
district court allowed discovery to proceed. During this time, Austin responded to the
motion to dismiss with countermotions after being told to file a response brief instead.
He also repeatedly filed updates about his “investigation,” motions seeking criminal
prosecutions of the defendants, and freestanding “exhibits.”
What Austin did not do was timely respond to the defendants’ interrogatories
and document requests. When the deadlines for his responses passed, and the
defendants could not reach him, they filed their first motion to compel. Austin did not
appear at a hearing on the motion, and the court warned him that the case would be
dismissed if he did not appear at a rescheduled hearing. Austin attended that hearing
and said that he had sent interrogatory responses and that his court filings answered
the document requests. The court explained that those filings were not responsive and
ordered Austin to re‐send his interrogatory answers, respond to the document requests,
and give his phone number and email address to the defendants. Austin gave an email
address but insisted he be contacted only by conventional mail. Only when the court
warned that he was “dangerously close” to dismissal did he provide a phone number.
Austin responded to the defendants’ interrogatories by sending six objections,
but he did not provide any documents. The defendants were unable to contact Austin
about his deficient responses. They then moved to compel discovery for a second time.
The court ordered Austin to respond properly to the discovery requests, told him what
was required, and warned him that it would dismiss the case if he did not comply.
Austin then moved to disqualify the presiding judge on the grounds that from
2005 to 2012 the judge had worked for the same law firm as Chicago Mayor Lori
Lightfoot and that the judge’s cousin—who is not a party—works for the City as a
police detective. See 28 U.S.C. § 455(a), (b)(1), (2), (5). The court denied the motion.
Eventually, Austin sent supplemental responses answering a few interrogatories
by referring the defendants to his other filings and objecting that most requests were
“ridiculous as hell,” a waste of his “[expletive] time,” and “abusive discovery tactics.”

-- 2 of 4 --

No. 22‐1509 Page 3
Again, he did not provide the defendants with any documents. The defendants thus
filed a third motion to compel discovery, this time adding an alternative request to
dismiss the case as a sanction. The court ruled that Austin’s responses were inadequate
and his objections improper, then warned Austin it would dismiss the case unless he
responded to all the requests without incorporating other documents by reference,
objecting on improper grounds, or using vulgar or inflammatory language. The court
reiterated that warning in a minute order.
Nonetheless, Austin again sent responses referring to other documents, objecting
to the defendants’ “abusive discovery tactics,” and using the same foul language. He
answered a handful of interrogatories, but he never sent documents. The defendants
again moved to compel discovery or dismiss the case, and, in the meantime, they tried
to schedule Austin’s deposition, but he would not agree to go to their lawyers’ office.
After a hearing, the court denied the defendants’ motion to compel or dismiss,
explaining that Austin’s latest response was a little better and that he could answer any
outstanding questions at his deposition (for which the judge offered up a room in the
courthouse). Defense counsel then noted their problems contacting Austin for
scheduling. The court told Austin to confer with counsel by phone or text message, but
Austin insisted he would do so by mail only. The court warned Austin it would dismiss
the case unless he complied. When he again refused to agree to schedule the meeting by
phone, the court dismissed the case. In its written opinion, the court explained that it
used its inherent power to impose a dismissal sanction because “the willfulness of
Mr. Austin’s conduct is evident from its repetition,” and “Austin’s continual refusal to
cooperate cannot be considered anything other than bad faith.”
Austin appeals, and though he primarily presses the merits of his claims, he
briefly argues that it was unfair to dismiss the case because his many filings proved his
claims. We review a dismissal sanction for abuse of discretion. Ebmeyer v. Brock, 11 F.4th
537, 546 (7th Cir. 2021). Under their inherent authority, district courts may sanction a
party that has “willfully abused the judicial process or otherwise conducted the
litigation in bad faith.” Id. Because of the severity of the sanction, dismissal is proper
only when the plaintiff “has willfully refused to comply with discovery orders” and
“has been warned that noncompliance may lead to dismissal.” Pendell v. City of Peoria,
799 F.3d 916, 917 (7th Cir. 2015).
Here, dismissal was a reasonable sanction because Austin willfully disobeyed the
court’s discovery orders after multiple warnings. See id.; Ebmeyer, 11 F.4th at 546.
Moreover, the court reasonably concluded that lesser sanctions were unlikely to be

-- 3 of 4 --

No. 22‐1509 Page 4
effective, see Pendell, 799 F.3d at 917, given Austin’s persistent disobedience and “flat
refusal to accommodate basic discovery practices.”
Austin also argues that the judge should have recused himself. But Austin did
not provide a transcript of the hearing at which the court gave its reasons for denying
the recusal motion. 1 We would normally conclude that Austin forfeited any argument
on this issue. See FED. R. A PP. P. 10(b)(2); Hall v. Jaeho Jung, 819 F.3d 378, 382 (7th Cir.
2016). But we can glean enough from the record to conclude under our de novo review,
United States v. Simon, 937 F.3d 820, 826 (7th Cir. 2019), that recusal was unnecessary.
No specific statutory provision required the recusal. See 28 U.S.C. § 455(b). Nor
was it necessary to recuse based on perceived partiality, even if the judge and the City’s
mayor worked at the same large firm over a decade ago or the judge’s cousin works for
the City. See id. § 455(a); Simon, 937 F.3d at 826; see also Nicholson v. City of Peoria,
860 F.3d 520, 524–25 (7th Cir. 2017) (rejecting as frivolous the argument that judge
cannot hear cases involving municipality that employed him decades earlier). And
without a statutory command, we “hesitate to treat the general language of § 455(a) as a
bar to judicial service whenever a [judge’s] relative has something to do with a party.”
In re Gibson, 950 F.3d 919, 927 (7th Cir. 2019) (cleaned up). Moreover, there is simply no
evidence of bias here: The district judge exercised remarkable patience with Austin and
gave him every opportunity to have his case decided on the merits.
AFFIRMED
1 At the outset of this appeal, we notified Austin that he needed to order all
necessary transcripts, but instead he filed his brief right away. Because Austin is not
proceeding in forma pauperis, and he did not inform us he could not afford the
transcript, we did not notify him that transcripts can be obtained at public expense if a
judge certifies that the appeal is nonfrivolous and presents a substantial question.
See 28 U.S.C. § 753(f).

-- 4 of 4 --