Kevin J. Long v. Martin A. Vogel

* After an examination of the briefs and the records, we have concluded that
oral argument is unnecessary. Thus, these appeals are submitted on the briefs and
records. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 15, 2006*
Decided January 31, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 05-4086
KEVIN J. LONG,
Plaintiff-Appellant,
v.
MARTIN A. VOGEL, et al.,
Defendants-Appellees
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division
No. 04 C 4581
Joan B. Gottschall,
Judge.
O R D E R
Kevin Long has filed a number of federal lawsuits that have resulted in
sanctions from both the district court and this court. Most recently, Long sued two
police officers, the Bishop of the Archdiocese of Chicago, a school, a nun, and several
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 05-4086 Page 2
others under § 1983, claiming that they violated his federal civil rights and
committed various state-law torts. During the course of the litigation, some of the
defendants moved for sanctions under Federal Rule of Civil Procedure 11 after Long
allegedly left a message on a third party’s answering machine admitting to filing the
suit to harass the defendants. Long argued that the recording had been tampered
with and asked the assigned magistrate judge to order the tape analyzed. The
magistrate judge denied this request, so Long mailed purported subpoenas to the
non-party owner of the tape and one of the defendants commanding them to produce
the tape and answering machine so that they might “undergo forensic analysis.” The
defendants responded that the subpoenas were invalid under Federal Rule of Civil
Procedure 45(a)(3) because they lacked the requisite signature by the clerk of the
court or by an officer of the court, and moved to quash them after Long refused each
of their three requests to either validate the subpoenas through the clerk’s office or
withdraw them altogether.
During a hearing on the matter, Long admitted to the magistrate judge that
the subpoenas were invalid. The magistrate judge, characterizing the subpoenas as
an attempt by Long to circumvent the court’s ruling on his request for analysis of the
tape, fined Long $1000 and warned him that failure to pay within 30 days would
result in a recommendation to the district court that his suit be dismissed under
Federal Rule of Civil Procedure 37(b). Long did not pay, and the magistrate judge
followed through and recommended dismissal. In reviewing that recommendation

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No. 05-4086 Page 3
the district court observed that this was not the first time Long had failed to follow
the court’s rules and abide by its rulings. In other cases, the court noted, Long had
repeatedly disobeyed court orders and refused to pay monetary sanctions levied
against him. The district court thus adopted the magistrate judge’s recommendation
and dismissed Long’s case with prejudice, noting that Long’s “past conduct has not
been deterred by sanctions short of dismissal.” Long appeals, arguing in case no. 05-
4086 that the court abused its discretion in dismissing his case as a sanction against
him and violated his Seventh Amendment right to a jury trial.
We review a decision to sanction a plaintiff with dismissal for abuse of
discretion. Dotson v. Bravo, 321 F.3d 663, 666 (7th Cir. 2003). Abuse of discretion
exists only where no reasonable jurist would agree with the trial court’s sanction or
where the court’s decision strikes us as fundamentally wrong, or is clearly
unreasonable, arbitrary, or fanciful. Greviskes v. Univs. Research Ass'n, Inc., 417
F.3d 752, 758 (7th Cir. 2005). Although dismissal is a harsh sanction, and its use
should be limited, dismissal is proper where the offending party has displayed
willfulness, bad faith, or fault provided that the court first considers and explains
why lesser sanctions would be inappropriate. Maynard v. Nygren, 332 F.3d 462,
467-68 (7th Cir. 2003).
Here, the district court determined that Long’s wilful disregard of the
magistrate judge’s discovery ruling and his attempt to circumvent that ruling by
serving subpoenas that even he admitted were invalid demonstrated a pattern of

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No. 05-4086 Page 4
obstinance. Recognizing that Long had flouted lesser sanctions in the past and had
violated the same court rules more than once—even after the court levied monetary
sanctions against him—the district court reasoned that dismissing his case was the
only sanction that would deter him from engaging in similar conduct in the future,
particularly considering that he had refused to pay any of his outstanding fines.
Given the court’s thorough analysis of Long’s conduct in the present case and his
history of flouting judicial admonitions and monetary sanctions, we cannot conclude
that the district court abused its discretion by explicitly rejecting lesser sanctions in
favor of dismissing Long’s case with prejudice. As for Long’s Seventh Amendment
argument, when a court dismisses a case within the bounds of its discretion, as the
court did here, there is no constitutional violation. 3 Penny Theater Corp. v. Plitt
Theaters, Inc., 812 F.2d 337, 340 (7th Cir. 1987); see also Parklane Hosiery Co., Inc.
v. Shore, 439 U.S. 322, 336 (1979) (explaining that procedural devices like summary
judgment that have “diminished the civil jury's historic domain” are not inconsistent
with Seventh Amendment).
Accordingly, the judgment of the district court is AFFIRMED.

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