* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### April 17, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

ERNIE JOE FIELDS,

Plaintiff-Appellant,

v. CORRECTIONS CORPORATION OF AMERICA, Diamondback Correctional Facility; JOEY BRADLEY, Assistant Warden, Diamondback Correctional Facility DBCF; ELVIS HIGHTOWER, Warden; PHYLLIS HANSEN, Correctional Health Services Administrator; CAPTAIN PEREZ, Chief of Security; LIEUTENANT WOOSLEY, Guard for DBCF; SERGEANT STILLWELL, Guard; B. HENDRYX, Seargent Guard; DR. AHMAD, Physician; D. GREGSON, Assistant Health Services Administrator; DR. ASH, Physician, Defendants-Appellees. No. 04-6348 (D.C. No. 02-CV-1392-R) (W.D. Okla.)

ORDER AND JUDGMENT ** (...continued)

conditions of 10th Cir. R. 36.3. -2- Before LUCERO , EBEL , and MURPHY , Circuit Judges.

In this civil rights suit, the district court gran ted the defendants’ motion for summary judgment based solely on the plaintiff’ s failure to file a timely response. That ruling directly contravenes control ling precedent. We therefore
VACATE the summary judgment order and REMAND for further proceedings. Ernie Joe Fields sued under 42 U.S.C. § 1983 to redress alleged incidents of excessive force and deliberate indifference to h is medical needs. After two years of litigation, generating several volumes of pleadings and documents, defendants filed a motion for summary judgment rais ing a number of issues and attaching some 500 pages of exhibits in addition to an extensive Martinez report. See Martinez v. Aaron , 570 F.2d 317 (10th Cir. 1978). Fields failed to file a response within the eighteen days allotted by local rule. See W.D. Okla. LCvR 7.2(f). Although the court allowed Fields an eleve n-day extension, it warned that it would grant defendants’ motion if he did not res pond by the new deadline. When no timely response was filed, the district cou rt deemed defendants’ motion confessed and, accordingly, granted summary judgment without conducting any1 The court subsequently denied a motion for reconsi deration. Fields amended his

existing notice of appeal to add this post-judgmentdecision. See Fed. R. App. P. 4(a)(4)(B)(ii), (iii). -3- analysis on the merits. Fields appealed, and the d istrict court granted his request for leave to proceed in forma pauperis. 1
In Reed v. Nellcor Puritan Bennett , 312 F.3d 1190 (10th Cir. 2002), we held that a party’s failure to respond to a summaryjudgment motion is not a legally sufficient basis on which to grant the moti on and enter judgment against that party. We explained that: the burden on the nonmovant to respond arises only if the summary judgment motion is properly ‘supported’ as requiredby Rule 56(c). Accordingly, summary judgment is ‘appropriate’ unde r Rule 56(e) only when the moving party has met its initial burd en of production under Rule 56(c). If the evidence produced in supp ort of the summary judgment motion does not meet this burden, ‘summary judgment must be denied even if no opposing evident iary matter is presented .’ [Adickes v. S.H. Kress & Co. , 398 U.S. 144, 160 (1970)] (quoting Fed. R. Civ. P. 56 advisory committee note s to the 1963 amendments) (emphasis added). If the nonmoving party fails to respond, the district court may not grant the motio n without first examining the moving party’s submission to determin e if it has met its initial burden of demonstrating that no materia l issues of fact remain for trial and the moving party is entitled t o judgment as a matter of law. If it has not, summary judgment is not appropriate, for ‘[n]o defense to an insufficient showing is req uired.’ Id. at 161. To summarize, a party’s failure to file a response to a summary judgment motion is not, by itself, a sufficient bas is on which to enter judgment against the party. The district court mus t make the additional determination that judgment for the movi ng party is ‘appropriate’ under Rule 56. Summary judgment is appropriate only if the moving party demonstrates that no genuine is sue of material fact exists and that it is entitled to judgment as a matter of law. By-4-

failing to file a response within the time specifie d by the local rule, the nonmoving party waives the right to respond or to controvert the facts asserted . . . in the summary judgment motion . But only if those facts entitle the moving party to judgment as a matter of law should the court grant summary judgment. Id. at 1194-95. In light of these established princip les, the district court’s ruling cannot stand on its stated rationale. Furthermore, given the multiplicity of legal issues and the voluminous evidentiary materials, no ne of which have been addressed by the parties on appeal, this is not an appropriate case for this court to decide summary judgment in the first instance. Rat her, we follow Reedand remand the matter for consideration by the districtcourt. See id. at 1196. Finally, we note that the district court “has discr etion to sanction a party for failing to prosecute or defend a case, or for f ailing to comply with local or federal procedural rules,” and in proper circumstan ces the sanction “may include dismissing the party’s case with prejudice or enter ing judgment against the party.” Id. at 1195. But such a severe sanction is “reserved for the extreme case, and is only appropriate where a lesser sanction wou ld not serve the ends of justice.” Id. (quotation omitted). Moreover, we require the dis trict court to address several relevant factors before it may impo se such a sanction. Id. at 1195-96. None of these matters was considered b y the district court as a basis for its ruling. As in Reed , we will not attempt to affirm a legally unsupported summary judgment ruling by undertaking an alternative sanctions analysis in the first instance on appeal. See id. at 1196.-5-

The judgment of the district court is VACATED and the cause is
REMANDED for further proceedings consistent with this orderand judgment.

Entered for the Court

Carlos F. Lucero Circuit Judge