* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfa vors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 6/28/96 TENTH CIRCUIT

SAMUEL GUTIERREZ,

Plaintiff-Appellant,

v. DEMING PUBLIC SCHOOLS,

Defendant-Appellee. Case No. 95-2277 (D.C. CV 95-915 HB/LCS) (District of New Mexico)

ORDER AND JUDGMENT *

Before BRORBY, EBEL, and HENRY, Circuit Judges.

Plaintiff-appellant Samuel Gutierrez appeals in forma pauperis from the dismissal of his employment discrimination action against defend ant-appellee Deming Public Schools. Mr. Gutierrez alleges that the appellee d enied him employment on the basis of his sex and his disability. The issue on appeal is whether the district court erred in dismissing these claims on the ground that Mr. Gutierr ez failed to respond to the1 After examining the briefs and appellate record, this panel has determined that

oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

2 The Rules of the United States District Court for the District of New Mexico w ere amended effective January 1, 1996. See D.N.M.LR-Civ. (1996). The relevant rule is now Rule 7.5(b), which for the purposes of this case has the same effect as the old Rule 7.8. See D.N.M.LR-Civ. 7.5(b) (1996). The Federal Rules of Civil Procedure authorize the district courts to make local rul es that are consistent with Acts of Congress and the Federal Rules themselves. Fed. R. Civ. P. 83( a)(1). 2 appellee's motion to dismiss. We affirm. 1 Mr. Gutierrez, a sometime substitute teacher in the De ming, New Mexico, school system, filed this action pro se claiming that he was denied employment as a full-time instructional assistant on the basis of his sex andhis disability, which he characterized as "Nervous Condition and Panic Disorder." Rec. doc . 1 (Charge of Discrimination). In response, the appellee filed a motion to dismiss unde r Fed. R. Civ. P. 12(b)(6), asserting that Mr. Gutierrez had failed to state a claim of di scrimination upon which relief could be granted. A copy of the motion to dismiss was serve d to Mr. Gutierrez on the date on which it was filed, September 14, 1995. After Mr. Gut ierrez failed to respond to the motion, Deming Public Schools moved the court on Novembe r 2, 1995, to dismiss pursuant to the applicable Local Rule, which stated that “[a] failure to file a brief . . . in opposition to any motion shall constitute a consent to . . . grant the motion.” D.N.M.LRCiv. 7.8 (1992). 2 The district court found that the appellee had info rmed Mr. Gutierrez by letter of the appellee’s intent to seek dismissal for failure to respond to the motion dismiss. Rec.3 Under the amended rules, a response is now due within fourteen calendar days after

service of a motion. D.N.M.LR-Civ. 7.6(a) (1996). Applying either version of the rules, Mr. Gutierrez’ case was not dismissed until well beyond the time allowed for filing a response. 3 doc. 7 at 1. Despite this notice, Mr. Gutierrez fai led to respond. On November 22, 1995, the district court dismissed the action, holdi ng that Mr. Gutierrez' "extended and unexplained failure to respond to Defendant Deming Pub lic School's Motion to Dismiss, despite specific notice of his failure, constitutes a consent to entry of dismissal of his claims . . . ." Id. at 2. On appeal, Mr. Gutierrez reiterates his claims of di scrimination and asserts that "it wasn't mandatory to reply" to the motion to dismis s. Rec. doc. 8 at 1. Contrary to this assertion, however, a response was required “within ten (10) days after service of the motion.” D.N.M.LR-Civ. 7.5 (1992). 3 According to our cases, only when the district court has abused it discretion will we rever se its decision to dismiss an action for failure to respond to a motion to dismiss. See Meade v. Grubbs , 841 F.2d 1512, 1520 n.5, 1522 (10th Cir. 1988). This court has previou sly identified three criteria to consider in reviewing a dismissal for failure to file a respo nse: "(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; and (3) the culpability of the litigant." Miller v. Department o f Treasury , 934 F.2d 1161, 1162 (10th Cir. 1991) (citing Hancock v. City of Oklahoma City , 857 F.2d 1394, 1396 (10th Cir. 1988)), cert. denied , 502 U.S. 1111 (1992). In this case, Mr. Gutierrez ' failure to respond to the motion to dismiss, even after having b een notified by the appellee that4

such failure would result in dismissal of his claims, was further aggravated by his failure to supply the court with any reason or excuse for this omission. Mr. Gutierrez complains that he was denied his “day i n court.” Aplt’s Br. at 3. But the record reflects that he chose himself not to respond to the appellee's motion to dismiss. See Aple’s Br. at 5. The court cannot help litigants who completely and without excuse fail to help themselves. We cannot c onclude under these circumstances that the court's order of dismissal was an abuse of i ts discretion. The dismissal is AFFIRMED. The mandate shall issue fo rthwith.

Entered for the Court,

Robert H. Henry Circuit Judge