REPORT AND RECOMMENDATION
REONA J. DALY, Magistrate Judge.
The matter has been referred to United States Magistrate Judge Reona J. Daly by United States District Judge David R. Herndon pursuant to 28 U.S. C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on Defendants' Joint Motion for Sanctions (Doc. 100). Plaintiff filed a Response (Doc. 105) and a Supplement to the Response (Doc. 107). It is RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law, and Defendants' Motion for Sanctions be GRANTED IN PART and DENIED IN PART.
FINDINGS OF FACT
Plaintiff Joseph Wilkins, a former inmate in the custody of the Illinois Department of Corrections ("IDOC"), filed this action pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated while he was incarcerated at Vandalia Correctional Center ("Vandalia"). Wilkins alleges that Defendants were deliberately indifferent to his medical needs in violation of the Eighth Amendment. He is proceeding on the following counts:
Count 1: Overall and Etcheson retaliated against plaintiff for filing grievances by deliberately delaying dental treatment and medication for plaintiff's emergency dental needs, pain, and suffering in violation of the First Amendment;
Count 2: Townsend was deliberately indifferent to plaintiff's serious medical needs when they refused to allow him to see the dentist to acquire more pain medication after his pain medication ran out;
Count 3: Overall, Etcheson, and Foster were deliberately indifferent to plaintiff's serious dental needs when they ignored his request slips for treatment, delayed treatment, refused to prescribe him pain medication, and refused to pull his teeth on an emergency basis.
In April 2018, Plaintiff left multiple voice messages with counsel for Defendants expressing an unwillingness to participate in a deposition without counsel (Doc. 100-1, 100-2). On April 25, 2018, Plaintiff filed a Motion for Recruitment of Counsel (Doc. 71). On June 19, 2018, the Court denied Plaintiff's motion for counsel (Doc. 82). On June 29, 2018, Defendants filed a Joint Motion for Order Compelling Plaintiff's Deposition (Doc. 86). On July 2, 2018, the Court granted Defendants' motion and ordered Plaintiff to make himself available to be deposed pursuant to Rule 30 (Doc. 89).
On August 24, 2018, Defense counsel sent Plaintiff a Notice of Deposition for Plaintiff's deposition to take place on September 7, 2018 at 10:00 a.m. at the Thompson Center in Chicago (Doc. 100-3). Defense counsel offered to travel to Chicago to take the deposition since Plaintiff lives in the Chicago area. Upon receipt of the correspondence, Plaintiff left a voice message for Defendant Overall's counsel on August 29, 2018 confirming his availability and intent to appear (Doc. 100-4). Plaintiff spoke to counsel for Defendants on two other occasions confirming his attendance. At no time between August 29, 2018 and September 7, 2018 did Plaintiff contact defense counsel to indicate he would be unable to attend his deposition.
Counsel for all Defendants traveled to Chicago and arrived at the Thompson Center on September 7, 2018 at approximately 9:30 a.m. Plaintiff did not present for the 10:00 a.m. deposition. Plaintiff could not be reached via phone by defense counsel.
Expenses incurred by Defendants are as follows:
• Counsel for Defendant Overall plane tickets from St. Louis, MO to Chicago, IL (395.96);
• Court reporter appearance fee (139.50);
• Mileage for Counsel for IDOC Defendants from Springfield, IL to Chicago, IL ($223.45);
Discovery closed on September 7, 2018. Defendants seek dismissal of Plaintiff's claims and reimbursement for the expenses incurred for travel to Chicago along with the court reporter fee. Defendants argue dismissal of Plaintiff's claims is an appropriate sanction for his willful failure to participate in his deposition.
Plaintiff asserts that he suffers from severe medical and mental health conditions including Post-Traumatic Stress Disorder, anxiety, and schizoaffective disorders. On or about September 5, 2018, Plaintiff began having episodes relating to his medical conditions and had to be hospitalized due to hearing voices, anxiety, and homicidal and suicidal ideations. Plaintiff asserts he did inform counsel for Defendants that he was in the hospital and asked counsel to reschedule the deposition. Plaintiff attached records from Loretto Hospital showing that he was admitted to the hospital from September 9, 2018 to September 13, 2018. Plaintiff asks the Court to re-open discovery so that his deposition can be rescheduled.
CONCLUSIONS OF LAW
Rule 30 of the Federal Rules of Civil Procedure governs the manner in which depositions will occur. The Rule provides that "[t]he examination and cross-examination of a deponent proceed as they would at trial . . ." and that while objections may be noted, "the examination still proceeds; the testimony is taken subject to any objection." FED. R. CIV. P. 30(c)(1) and (2). There are only three instances when a deponent may not answer a question: (1) when it is necessary to preserve a privilege; (2) when the Court has imposed a limitation; or (3) when the party intends to file a Rule 30(d)(3) motion. Id. at 30(c)(2). A Rule 30(d)(3) motion can be filed to terminate a deposition if it is conducted in bad faith or if it is conducted in a manner "that unreasonably annoys, embarrasses, or oppresses the deponent or party." If a deponent "impedes, delays, or frustrates the fair examination," this Court may impose sanctions including reasonable attorney fees and costs. Id. at 30(d)(2).
A case may also be dismissed pursuant to Rule 37 of the Federal Rules of Civil Procedure when the Court finds "willfulness, bad faith or fault on the part of the defaulting party." Brown v. Columbia Sussex Corp., 664 F.3d 182, 190 (7th Cir. 2011). However, the sanction of dismissal must be "proportionate to the circumstances." Collins v. Illinois, 554 F.3d 693, 696 (7th Cir. 2009). In this case, while Plaintiff failed to comply with Rules 30 and 33, his conduct does not necessitate the severe sanction of dismissal at this time. While the medical records do not indicate that Plaintiff was hospitalized on the date of the scheduled deposition, they do indicate that when Plaintiff presented on September 9, 2018, he had been experiencing severe symptoms of paranoid schizophrenia for three days prior. Based on a review of the mental health records, it is questionable whether Plaintiff could have meaningfully participated in his deposition on September 7, 2018. Plaintiff, however, should have timely notified counsel for Defendants of his inability to attend the deposition. The Court has determined a reasonable monetary fine is an appropriate sanction.
RECOMMENDATIONS
Based on the foregoing, it is RECOMMENDED that Defendants' Motion for Sanctions (Doc. 100) be GRANTED IN PART and DENIED IN PART, and that:
1. Plaintiff be ORDERED to reimburse Counsel for Defendant Overall the cost of the court reporter appearance in the amount of $139.50. Failure to pay Defendant's cost by December 27, 2018 SHALL result in dismissal of this action for failure to obey a Court Order pursuant to Federal Rule of Civil Procedure 41(b).
2. Defendants are GRANTED leave to reschedule the deposition of Plaintiff. Plaintiff is WARNED that his failure to comply with Rule 30 and offer complete answers to each deposition question SHALL result in dismissal of this action.
3. Discovery deadline is extended to December 27, 2018.
4. Dispositive motion filing deadline is extended to January 17, 2019.
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), the parties shall have fourteen (14) days after service of this Report and Recommendation to file written objection thereto. The failure to file a timely objection may result in the waiver of the right to challenge this Report and Recommendation before either the District Court or the Court of Appeals. See, e.g., Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004).
