Kelly D. Ebmeyer v. Adam Brock

In the
United States Court of Appeals
For the Seventh Circuit
No. 19-2065
KELLY D. EBMEYER,
Plaintiff-Appellant,
v.
ADAM BROCK, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:16-cv-04056-SEM-TSH — Sue E. Myerscough, Judge.
ARGUED NOVEMBER 13, 2020 — DECIDED AUGUST 25, 2021
Before FLAUM, ROVNER, and BRENNAN, Circuit Judges.
ROVNER, Circuit Judge. Kelly D. Ebmeyer sued several
prison officials under 42 U.S.C. § 1983, alleging violations of
the Eighth Amendment. The district court ultimately dismissed
the suit with prejudice as a sanction for Ebmeyer’s litigation
conduct related to his attempts to identify one of the prison
employee defendants. Because the court failed to make the

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2 No. 19-2065
necessary findings to support this sanction, we vacate and
remand for further proceedings. We also affirm the court’s
grant of summary judgment to other defendants.
I.
Ebmeyer was an inmate at Hill Correctional Center (“Hill”)
on April 16, 2014 when the Illinois Department of Corrections
Special Operations Response Team (known as “Orange
Crush”) performed a facility-wide shakedown. Ebmeyer filed
a lawsuit for actions purportedly taken against him during the
shakedown. His complaint alleged that the Orange Crush team
subjected him to a humiliating, unconstitutional strip search
and excessive force, in violation of his Eighth Amendment
rights and 42 U.S.C. § 1983. In addition to describing the
manner in which the strip search was conducted, he asserted
that an unidentified “John Doe” member of that team placed
him in extremely tight handcuffs that caused him injuries;
Sergeant Jeffrey Oelberg struck him with a baton, squeezed his
testicles, and forced him to stand handcuffed and facing a wall
in a stress position for more than three hours; and prison
officials Joseph Yurkovich and Kevwe Akpore promulgated
policies that encouraged the challenged unconstitutional
conduct.1 He sought declaratory relief, compensatory and
punitive damages, medical and psychological care, costs, and
an injunction prohibiting the Orange Crush team from engag-
ing in such conduct against him in the future.
1 Akpore was the warden at Hill, and Yurkovich was the Chief of
Operations for the Illinois Department of Corrections.

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No. 19-2065 3
The district court ultimately granted summary judgment in
favor of Yurkovich, Akpore, and Oelberg, finding that
Ebmeyer had failed to exhaust his administrative remedies on
his claims against these defendants. On Ebmeyer’s remaining
claim against the John Doe defendant related to the handcuff-
ing injuries, the court initially allowed the claim to proceed and
kept Akpore in the case in order to assist Ebmeyer in identify-
ing the John Doe defendant. After Ebmeyer identified the
unnamed defendant as Adam Brock, the court became aware
that Ebmeyer had known from the beginning of the suit that
the John Doe defendant’s first name was “Adam,” and the
court issued an Order to Show Cause why it should not
dismiss the case with prejudice for Ebmeyer’s failure to
disclose this identification information sooner. The court
rejected Ebmeyer’s ensuing explanation and dismissed the suit
with prejudice. Ebmeyer appeals.
II.
On appeal, Ebmeyer first asserts that the court erred in
granting summary judgment to three defendants on exhaus-
tion grounds because they failed to meet their burden of
proving failure to exhaust, and because the court should have
conducted a fact-finding hearing on the matter before ruling.
Second, he contends that the court erred in dismissing his case
with prejudice as a sanction because the court failed to make
appropriate factual findings supporting this extreme sanction,

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4 No. 19-2065
and because his conduct as a pro se litigant did not warrant
such a sanction.2
A.
Under the Prison Litigation Reform Act of 1996 (“PLRA”),
a prisoner may not file a section 1983 suit with respect to
prison conditions “until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s
exhaustion requirements apply to all of the claims raised by
Ebmeyer, including his claims for excessive force. Porter v.
Nussle, 534 U.S. 516, 532 (2002) (“the PLRA’s exhaustion
requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some
other wrong.”). This means that “if a prison has an internal
administrative grievance system through which a prisoner can
seek to correct a problem, then the prisoner must utilize that
administrative system before filing a claim.” Massey v. Helman,
196 F.3d 727, 733 (7th Cir. 1999).
Hill Correctional Center followed the grievance procedures
set forth in the Illinois Administrative Code. See 20 Ill. Admin.
Code § 504.810. The Code provides that prisoners “may file a
written grievance on a grievance form that shall be made
available in all living units. Grievances shall be addressed to
his or her institutional counselor[.] … A grievance must be
filed with the counselor or Grievance Officer in accordance
2 Ebmeyer also appealed the district court’s dismissal of his claim for
injunctive relief, but conceded in his reply brief that the claim is now moot
because he has been released on parole.

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No. 19-2065 5
with the procedures in this Subpart, within 60 days after the
discovery of the incident, occurrence or problem that gives rise
to the grievance.” 20 Ill. Admin. Code § 504.810(a).
After the April 16, 2014 incident, Ebmeyer filed three
grievances: (1) an April 16, 2014 grievance complaining that a
bag of coffee was missing from his cell after the shakedown;
(2) an April 18, 2014 grievance asserting that a towel was
missing from his cell; and (3) a May 18, 2014 grievance com-
plaining that Orange Crush placed him in extremely tight
handcuffs during the shakedown despite his pleas to have
them loosened, causing him pain, numbness, and abnormal
touch sensations on his left wrist and thumb where he had
previously had surgery. He also complained that he had been
wrongfully charged $5 for a medical visit related to his wrist
injuries from this incident. Notably, he did not file a grievance
complaining about any conduct by Oelberg, Akpore or
Yurkovich. The counselor who reviewed the grievances denied
the property complaints, and found that the $5 charge for non-
emergent care was appropriate.3 Ebmeyer appealed all three
denials to the grievance officer, and all were denied again. He
then appealed the tight handcuffs claim to the Director of the
Illinois Department of Corrections, who denied it as well.
Ebmeyer then filed this suit in federal court.
When Oelberg, Akpore and Yurkovich sought summary
judgment for failure to exhaust administrative remedies,
Ebmeyer, who was proceeding pro se in the district court,
3 On the grievance form, under “Relief Requested,” Ebmeyer sought, “#1
The $5 I was charged for the guards punishing me in a cruel and unusual
way needs to be placed back in my account. #2 To be made whole.”

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6 No. 19-2065
responded that the grievance system was not “available” for
his problem because he could “not get relief from the grievance
system after being victimized.” R. 31, at 3. He further explained
that he “couldn’t receive a remedy to not be abused by filing a
grievance after it happened.” In his attached affidavit, he
asserted:
According to the inmate manual, the first
step in resolving a grievance is to communi-
cate with an officer. … When Plaintiff tried
resolving the grievance through the first
course of action listed in our inmate manual
by asking Sgt. Oelberg of the Orange Crush
if this was necessary to have his baton be-
tween my legs, he struck me with the baton
then squeezed my testicles. At this point,
Plaintiff felt it was in his best interest to not
further try to resolve the grievance with the
controlling officer on duty. … I filed three
grievances afterwards. I filed a verbal griev-
ance and was beaten.
R. 31, at 6–7. On appeal, Ebmeyer characterizes this as uncon-
tested testimony regarding the unavailability of the grievance
process. He contends that he was not required to exhaust the
grievance process because it was unavailable to him, citing
Schultz v. Pugh, 728 F.3d 619, 620 (7th Cir. 2013), for the
proposition that the grievance process is not available to a
prisoner prevented by threats or other intimidation by prison
personnel from seeking an administrative remedy by filing a
grievance. In the very least, he argues, the court should have
held a hearing under Pavey v. Conley, 544 F.3d 739, 742 (7th Cir.

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No. 19-2065 7
2008), to resolve disputes of fact regarding whether the
grievance process was available to him.4
Ebmeyer correctly states that an inmate need only exhaust
those remedies that are “available” under the prison’s proce-
dures. Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir. 2016)
(excessive force claim not subject to the PLRA exhaustion
requirement when no administrative remedies were “avail-
able” to the prisoner during the relevant exhaustion period).
We review dismissals for failure to exhaust administrative
remedies de novo. Hernandez, 814 F.3d at 840. “Administrative
remedies are primarily ‘unavailable’ to prisoners where
‘affirmative misconduct’ prevents prisoners from pursuing
administrative remedies.” Hernandez, 814 F.3d at 842 (quoting
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006)). For example,
remedies are considered unavailable when a correctional
officer tells the prisoner that he cannot file a grievance when in
fact the prisoner can do so. Thomas v. Reese, 787 F.3d 845,
847–48 (7th Cir. 2015). Remedies are also unavailable where the
prisoner presents evidence that prison personnel denied him
grievance forms, threatened him, and solicited other inmates
to attack him in retaliation for filing grievances. Kaba v. Stepp,
458 F.3d 678, 680, 686 (7th Cir. 2006). See also Dale v. Lappin, 376
F.3d 652, 656 (7th Cir. 2004) (remedies unavailable where
4 The government argues that Ebmeyer forfeited a claim that the grievance
process was unavailable due to Oelberg’s retaliatory action, contending that
Ebmeyer did not raise this claim clearly before the district court. But a
“document filed pro se is ‘to be liberally construed,’” Erickson v. Pardus, 551
U.S. 89, 94 (2007), and by that standard, Ebmeyer’s filings in the district
court adequately preserved the issue for appeal.

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8 No. 19-2065
prison personnel refused prisoner access to required grievance
forms).
Ebmeyer’s claim fails on the facts here. When an inmate
claims that the grievance process is unavailable because he
fears reprisal, he must demonstrate that a person of “ordinary
firmness” would have been deterred from filing a grievance in
the circumstances alleged. Schultz, 728 F.3d at 621; Kaba, 458
F.3d at 684–85. This is an objective standard. No Pavey hearing
was required here because, even if we assume that the facts are
as Ebmeyer suggests, under the objective standard, no person
of ordinary firmness would have been dissuaded from filing a
grievance in these circumstances. Ebmeyer asserts that the
inmate manual directed him to first take the matter up with an
officer, and that his oral complaint to an officer (in this in-
stance, his alleged abuser, Oelberg) resulted in further abuse,
dissuading him from taking the complaint further. But prison
procedures did not require Ebmeyer to take up his complaint
with his abuser, as he clearly knew. Although he averred that
he “felt it was in his best interest to not further try to resolve
the grievance with the controlling officer on duty,” the
grievance procedure provided him a clear route around
Oelberg, through his counselor, the grievance officer and the
Director. The record indisputably demonstrates that Ebmeyer
knew this was the procedure; he followed it in filing three
other grievances for events that he alleged happened that very
same day. No one told him he could not file a grievance or
denied him the proper forms. No one threatened to harm him
if he filed a grievance. The forms and the process were avail-
able to him, and he filed and litigated his other shakedown
complaints in the prison system. Moreover, he fails entirely to

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No. 19-2065 9
explain how he was dissuaded from filing a grievance against
Akpore or Yurkovich. Because Ebmeyer failed to exhaust the
grievance process on his claims against these three defendants,
we affirm the district court’s grant of summary judgment in
their favor.
B.
Ebmeyer also contends that the district court erred in
dismissing the remainder of his case as a sanction for his
conduct in delaying the identification of the John Doe defen-
dant who allegedly applied overly tight handcuffs to his wrists
during the shakedown. In the grievance he filed on May 18,
2014, Ebmeyer identified this defendant simply as “Orange
Crush” and “Orange Crush guard.” In the operative complaint,
he identified the wrongdoers on this claim as “I.D.O.C. Special
Operations Response Team (SORT) AKA Orange Crush,” and
as “Unknown members of Orange Crush.” The district court
ruled that Ebmeyer had exhausted administrative remedies for
his excessive force claim against the John Doe Orange Crush
officer and retained Warden Akpore as a defendant “for
purposes of identifying the John Doe Orange Crush officer.”
R. 33, at 7–8. The court granted Ebmeyer leave to file a motion
to substitute the real name of the John Doe defendant within
sixty days. Less than a month later, Ebmeyer moved to
substitute the name of the real John Doe, but because he did
not specify a name, the court denied the motion with leave to
renew. The court told Ebmeyer that, if he renewed the motion,
“he should provide as much information about the John Doe
defendant as possible, including a physical description.” The
court also advised Ebmeyer that he could seek information
about John Doe’s identity through the discovery process.

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10 No. 19-2065
Ebmeyer then filed a motion to compel responses to
interrogatories seeking to identify John Doe, for appointment
of counsel, and to substitute the name of the John Doe. This
time, Ebmeyer described when and where (including his
housing unit, wing, and cell) he encountered the unknown
officer, noted that the Caucasian male officer was wearing
tactical team attire with the face shield down as shown in an
attached exhibit, and remarked that he was “probably as tall as
the Plaintiff, 6 foot.” Ebmeyer also asserted that, “Everything
else on Defendant John Doe Orange Crush was purposely
hidden, including his name tag.” R. 37. The court denied the
motion for counsel, accepted the description, and granted an
extension of time to defendant Akpore to respond to discovery.
A few months later, Ebmeyer again moved to compel answers
to interrogatories. Akpore then supplied Ebmeyer with a roster
of Orange Crush members working at the prison on the date of
the shakedown, highlighting the names of officers who
matched the physical description Ebmeyer had provided. In
light of Akpore producing that list, the court denied Ebmeyer’s
motion to compel, and ordered Ebmeyer to substitute the real
name of the defendant within thirty days. Within that time
frame, on April 26, 2018, Ebmeyer moved to substitute the real
name of the John Doe defendant, this time identifying him as
Adam Brock, one of the people listed on Akpore’s roster. The
court granted the motion and ordered that Brock be served
with the complaint.
Ten months later, the court, on its own initiative, issued an
Order to Show Cause “why the Court should not impose
sanctions, including dismissal, for Plaintiff’s failure to disclose
information relevant to the identification of the Doe Defen-

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No. 19-2065 11
dant.” R. 65. The court had learned how Ebmeyer had identi-
fied Brock as the Doe defendant from Ebmeyer’s sworn
response to an interrogatory, contained in an exhibit to Brock’s
motion for summary judgment. Ebmeyer explained in that
response:
The defendant was called Adam by others. I
was provided 17 names by the defense of
Orange Crush members at Hill C.C. that day.
Only 1 was an “Adam.” Therefore, through
the process of elimination, I was able to
deduce Mr. Brock. In fact, of over 50 names
provided of Orange Crush members from
other prisons, he was the sole Adam. Further-
more, I find it easier than normal to remem-
ber the name of someone that has hurt me.
R. 65, at 3 (quoting R. 59-2, at 1). Ebmeyer had also revealed in
deposition testimony (which was also an exhibit to Brock’s
motion for summary judgment) that he had known Brock’s
first name since the date of the shakedown, April 16, 2014. He
also testified that he did not provide the first name sooner
because he “would have felt silly, embarrassed to just put
down that Adam hurt me, Adam did this, Adam did that, not
knowing [Adam’s] last name.” R. 65, at 4 (quoting R. 59-1, at
25). Finally, when asked why he did not reveal Brock’s first
name when the court directed him to provide as much infor-
mation as possible about the Doe defendant, Ebmeyer replied

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12 No. 19-2065
that he “didn’t really feel that part was relevant.” R. 65, at 4
(quoting R. 59-1, at 25).5
The court noted in the Order to Show Cause that it had
retained Akpore in the case to aid in identifying the John Doe,
and that the court relied on pro se plaintiffs to provide accurate
and full disclosure of relevant information to expedite the
resolution of claims and minimize the inconvenience to prison
officials providing assistance. The court stated that, when a
litigant frustrates a court’s duties or otherwise perpetrates a
fraud in the course of litigation, the court was empowered to
impose sanctions, including dismissal or default. The court
remarked that Ebmeyer’s statement that he was able to identify
Brock because he was the only person on the list named
“Adam” contradicted his statement that he thought the first
name was irrelevant. Moreover, Ebmeyer had suggested twice
in motions that he was unable to identify the Doe defendant
because members of Orange Crush actively concealed their
identities.
Ebmeyer, still proceeding pro se, responded to the Order to
Show Cause by explaining that he provided what he believed
was all the relevant information about John Doe, and that he
did not attempt to delay the litigation. He asserted that he gave
a physical description of the officer to the best of his ability in
response to the court’s order, and that the Orange Crush
members covered their name badges and failed to leave
“shakedown slips” in his cell identifying themselves as they
5 Ebmeyer further explained at his deposition that, when the court ordered
him to provide a “description” of the Doe defendant, he assumed the court
was asking for a physical description. R. 59-1, at 25.

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No. 19-2065 13
are required to do. He explained that he did not know Brock’s
last name until he received the roster from Akpore. He also
noted that, although no one left a shakedown slip in his cell,
prison officials should have been able to identify Brock from a
properly prepared slip, given Ebmeyer’s description of the
place and time he encountered the officer, including his
housing unit, wing, and cell.
Due to a delay in receiving the response, the court ruled
before Ebmeyer’s response arrived. After noting that Ebmeyer
had not replied within the allotted time, the court ruled that
“sanctions are appropriate in this matter for the reasons stated
in its previous Order.” R. 66, at 1. Because Ebmeyer was
proceeding in forma pauperis, the court further found that “any
sanction short of dismissal would not be appropriate.” R. 66, at
1–2. Without further comment, the court dismissed the case
with prejudice. R. 66, at 2. Ebmeyer filed a Rule 59(e) motion to
alter or amend the judgment, pointing out that he had in fact
timely replied to the court’s Order to Show Cause per the
prison mailbox rule.
The Court then accepted Ebmeyer’s timely filed response
but declined to change the judgment. The court wrote that it
had dismissed the claims with prejudice “as a sanction for his
willful failure to disclose the first name of the Doe Defendant
for almost two years.” R. 74.6 The court noted that the Order to
Show Cause asked Ebmeyer to explain why he delayed the
proceedings by withholding the first name for almost two
6 Our review of the Order to Show Cause reveals no such finding of willful
behavior by Ebmeyer. As we discuss infra, the court simply described
possibly troubling circumstances and directed Ebmeyer to explain them.

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14 No. 19-2065
years while “simultaneously insinuating that he could not
possibly have known it.” The court said that Ebmeyer’s
deposition testimony directly contradicted his argument that
he disclosed Brock’s name as soon as possible because he had
in fact known Brock’s first name since the day of the incident.
Remarking that Ebmeyer’s only reason for not providing the
first name earlier was that he would have felt “silly” doing so,
the court declined to amend its earlier order.
“[A] court has the inherent authority to manage judicial
proceedings and to regulate the conduct of those appearing
before it, and pursuant to that authority may impose appropri-
ate sanctions to penalize and discourage misconduct.” Ramirez
v. T&H Lemont, Inc., 845 F.3d 772, 776 (7th Cir. 2016). A court
must find by a preponderance of the evidence that the respon-
sible party acted (or failed to act) “with a degree of culpability
that exceeds simple inadvertence or mistake before it may
choose dismissal as a sanction for discovery violations.”
Ramirez, 845 F.3d at 776, 778. Moreover, sanctions imposed
pursuant to the court’s inherent authority “must be premised
on a finding that the culpable party willfully abused the
judicial process or otherwise conducted the litigation in bad
faith.” Ramirez, 845 F.3d at 776. The court’s inherent power to
dismiss is “vested in courts to manage their own affairs so as
to achieve the orderly and expeditious disposition of cases.”
Schilling v. Walworth County Park & Planning Commission, 805
F.2d 272, 274–75 (7th Cir. 1986). “The sanction of dismissal with
prejudice must be infrequently resorted to by district courts in
their attempts to control their dockets and extirpate nuisance
suits.” Schilling, 805 F.2d at 275. Dismissal is a harsh sanction,
and in general, “justice is dispensed by the hearing of cases on

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No. 19-2065 15
their merits[.]” Id. We review exercises of the court’s inherent
authority to dismiss for abuse of discretion, and findings of fact
for clear error. Salmeron v. Enterprise Recovery Systems, Inc., 579
F.3d 787, 793 (7th Cir. 2009). A decision that rests on an error
of law is always an abuse of discretion. United States v. Shelton,
997 F.3d 749, 757 (7th Cir. 2021).
The court here made an error of law when it dismissed the
case without finding that Ebmeyer willfully abused the judicial
process or otherwise conducted the litigation in bad faith when
he failed to reveal Brock’s first name sooner. Nor did the court
find that Ebmeyer acted or failed to act with a degree of
culpability that exceeded simple inadvertence or mistake
before it chose dismissal as a sanction. The court did not
address Ebmeyer’s explanations for why he failed to reveal the
first name sooner. Finally, the court failed to consider any
sanction short of dismissal, instead instituting a de facto rule
that, in cases where the plaintiff proceeds in forma pauperis,
dismissal is the only effective sanction.
In dismissing the case, the court stated that sanctions were
appropriate “for the reasons stated in its previous Order.” But
the court had not stated reasons or factual findings in its
previous Order to Show Cause. That Order had detailed
circumstances that the court found troubling, namely, that
Ebmeyer had known Brock’s first name from the beginning of
the suit; had failed to disclose it in the face of an order directing
him to reveal all relevant information about the Doe defendant;
had denied the relevance of the first name in apparent contra-
diction to his admission that he was able to identify Brock from
the prison’s roster because he was the only officer named
“Adam;” and had claimed he lacked identifying information

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16 No. 19-2065
because the officers actively concealed their identities when he
knew the first name all along. Those circumstances certainly
could indicate some level of misconduct but they could also be
explained by mistake or inadvertence.
Trial courts must insure that the claims of a pro se litigant
are given fair and meaningful consideration. Schilling, 805 F.2d
at 277. A review of the course of the litigation indicates no
apparent pattern of delay or contumacious conduct by
Ebmeyer. Although he was incarcerated and appearing pro se,
he appeared to have been complying with the court’s orders
and deadlines as the litigation progressed. Nor did Ebmeyer
have any apparent incentive to delay the litigation or mislead
the court. As the plaintiff, he had nothing to gain by delaying
the identification of Adam Brock as the defendant who harmed
him. Ebmeyer asserts that he simply misunderstood the court’s
order to provide descriptive information about the officer
when he interpreted it as requiring only a physical description.
It is also plausible on this record that he did not comprehend
the relevance or importance of providing a first name until
presented with a roster on which, coincidentally, only one
person named “Adam” appeared. It would not be unusual for
a pro se litigant to assume that the prison had a ready means of
identifying the officer who participated in the shakedown of
his cell, especially when provided with a physical description
(as he understood the court to order), the timing of the
encounter, and the place, including the housing unit, wing, and
cell.
Moreover, there is not necessarily a contradiction in
claiming that the officers actively hid their identities by
covering their name badges and their faces with helmet

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No. 19-2065 17
shields, and yet also admitting later that he heard another
officer refer to his alleged abuser as “Adam.” On the record as
it currently stands, Ebmeyer’s conduct is plausibly the result of
misunderstanding, inadvertence or mistake as opposed to an
indication of bad faith or a willful abuse of the judicial process.
The court erred when it dismissed the case without finding that
Ebmeyer acted (or failed to act) with a degree of culpability
that exceeded simple inadvertence or mistake. Because the
court failed to find that Ebmeyer willfully abused the judicial
process or otherwise conducted the litigation in bad faith, we
vacate and remand for proceedings consistent with this
opinion.
Finally, we note that the “need for the district court to
exercise discretion in deciding among alternative sanctions was
especially great in this case, given the plaintiff’s pro se status.”
Schilling, 805 F.2d at 277. Moreover:
A litigant who appears pro se should not be
treated more harshly for negligent errors
than one represented by an attorney. …
Otherwise, only those wealthy enough to be
able to afford an attorney would be able to
insulate themselves from the consequences of
an occasional human error[.]
Schilling, 805 F.2d at 277 n.8. For a pro se prisoner proceeding
in forma pauperis, a verbal or written warning, or a modest
monetary sanction may have a sufficient effect. Evans v. Griffin,
932 F.3d 1043, 1048 (7th Cir. 2019) (dismissing a case with
prejudice is one of the harshest sanctions a court can impose,
and so courts must be especially careful before taking that step;

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18 No. 19-2065
even in the case of an indigent prisoner for whom a high-dollar
fine might be inappropriate, other sanctions are available: for
example, a warning from the court, a small financial sanction,
taking certain facts to be established in favor of the party that
secured an order compelling discovery, or dismissal without
prejudice). Moreover, sanctions, including dismissal, must be
proportionate to the circumstances. Donelson v. Hardy, 931 F.3d
565, 569 (7th Cir. 2019). See also Evans, 932 F.3d at 1048 (the
gravity of the misconduct must always inform the choice of
sanction). “Considerations relevant to proportionality include
the extent of the misconduct, the ineffectiveness of lesser
sanctions, the harm from the misconduct, and the weakness of
the case.” Donelson, 931 F.3d at 569. See also Oliver v. Gramley,
200 F.3d 465, 466 (7th Cir. 1999) (although dismissal with
prejudice is a permissible judicial sanction for fraud on the
court, the general rule is that before dismissing a suit with
prejudice as a sanction for misconduct a court should consider
the adequacy of a less severe sanction). It is not apparent from
the court’s order whether it considered any sanction other than
dismissal.
Although we vacate and remand for proceedings consistent
with this opinion, we do not mean to suggest any particular

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No. 19-2065 19
result on remand. Further development of the record might
support factual findings that would justify the sanction of
dismissal.7
AFFIRMED IN PART;
VACATED AND REMANDED IN PART.
7 We thank appointed counsel for their vigorous advocacy on Ebmeyer’s
behalf.

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