Syris T. Birkley v. JORDAN TAYLOR and AMIKA AVERY

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 4, 2025*
Decided November 24, 2025
Before
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 24-2175
SYRIS T. BIRKLEY,
Plaintiff-Appellant,
v.
JORDAN TAYLOR
and AMIKA AVERY,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 22-cv-1366-pp
Pamela Pepper,
Chief Judge.
O R D E R
Syris Birkley appeals the dismissal with prejudice of his complaint as a sanction
for his refusal to cooperate with discovery and comply with a court order. We affirm.
* 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-2175 Page 2
Birkley filed his complaint pursuant to 42 U.S.C. § 1983. He sued two jail
officials, alleging that they violated his rights under the Constitution when they
physically abused and sexually harassed him during the booking process at the
Milwaukee County Jail. But after filing the complaint, Birkley twice failed to appear for
his properly noticed deposition. The defendants moved to extend the time to complete
discovery and to compel Birkley to cooperate with his deposition. The court granted the
motion to amend the scheduling order and warned Birkley that it could dismiss the case
for lack of diligence if he did not appear.
Birkley then appeared for the deposition. But afterward, the defendants filed a
motion asking the district court to sanction Birkley for his conduct at the deposition by
dismissing the complaint with prejudice. They explained that Birkley refused to answer
questions during the deposition, instead referring counsel to the complaint. They also
noted that Birkley was accompanied by a woman who was recording the deposition on
her cellphone. Defense counsel ended the deposition early after Birkley refused to stop
recording.
Birkley did not respond to the defendants’ motion for sanctions. The court
ordered Birkley to show cause why it should not dismiss the case as a sanction for his
failure to cooperate with discovery and comply with the court’s order. Birkley
responded by filing an affidavit invoking theories about sovereign citizens and
asserting that a default judgment should be entered in his favor because the defendants
did not answer his complaint. He did not address his conduct during discovery.
The court granted the defendants’ motion for sanctions and dismissed the
complaint with prejudice. In its order, the court referenced the defendants’ argument
that dismissal was appropriate because of Birkley’s “record of delay and lack of
cooperation in discovery” and his failure to respond to the defendants’ motion for
sanctions. We therefore understand the district court to have applied Federal Rules of
Civil Procedure 37(b)(2)(A)(v) and 41(b) in dismissing the suit. The court also denied
Birkley’s request for a default judgment, explaining that the defendants were not in
default because they filed a timely answer to the complaint.
Birkley appeals, arguing that the district court abused its discretion by
dismissing his complaint after it concluded that Birkley had failed to comply with the
court’s orders. “Of all possible sanctions, dismissal is considered draconian, and we
must be vigilant in our review.” Maynard v. Nygren, 372 F.3d 890, 892 (7th Cir. 2004)
(internal quotations and citation omitted). But dismissal is an appropriate sanction
where, as here, a party “has willfully refused to comply with discovery orders” and

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No. 24-2175 Page 3
“has been warned that noncompliance may lead to dismissal.” Pendell v. City of Peoria,
799 F.3d 916, 917 (7th Cir. 2015). The court warned Birkley twice that his failure to
comply with court orders could lead to dismissal: first, in the court’s scheduling order
(advising that failing to “comply with the court’s orders may result in the dismissal of
this case for failure to prosecute”), and second, in the court’s text-only order extending
the deadline to complete discovery (warning Birkley that “if he does not appear for his
properly noticed deposition, the court may dismiss this case for lack of diligence”). The
court also cautioned Birkley in its order to show cause that it would dismiss the case if
he failed to respond.
Further, a sanction of dismissal is justified “where the offender has willfully
abused the judicial process or otherwise conducted litigation in bad faith.” Emerson v.
Dart, 900 F.3d 469, 473 (7th Cir. 2018) (quoting Salmeron v. Enter. Recovery Sys., Inc., 579
F.3d 787, 793 (7th Cir. 2009)). To the extent that Birkley argues that the district court
failed to make an explicit finding of willfulness or bad faith, “we may infer it, if
necessary, from the sanction order itself.” In re Golant, 239 F.3d 931, 936 (7th Cir. 2001).
Despite having been ordered to do so, Birkley never responded to the defendants’
allegations that he twice failed to appear for his deposition and, when he did appear, he
refused to answer questions or stop recording the deposition on a cellphone. The
district court acted well within its discretion to conclude that this conduct amounted to
bad faith.
Birkley also argues that sanctioning him, in part, for refusing to answer questions
during his deposition violates his right to remain silent under the Fifth Amendment.
But the Fifth Amendment provides a privilege against self-incrimination, not an
absolute right to refuse to answer questions. See Ruiz-Cortez v. City of Chicago, 931 F.3d
592, 603 (7th Cir. 2019). During his deposition, Birkley refused to answer questions
about the allegations in his complaint that the defendants had abused him during the
jail booking process. Those questions posed no risk of self-incrimination.
We have considered Birkley’s other arguments, and they do not merit discussion.
AFFIRMED

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