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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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 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 granted the defendants’ motion

for summary judgment based solely on the plaintiff’s failure to file a timely

response. That ruling directly contravenes controlling 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 his medical needs. After two

years of litigation, generating several volumes of pleadings and documents,

defendants filed a motion for summary judgment raising 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 eleven-day extension, it warned that

it would grant defendants’ motion if he did not respond by the new deadline. 

When no timely response was filed, the district court deemed defendants’ motion

confessed and, accordingly, granted summary judgment without conducting any
1

 The court subsequently denied a motion for reconsideration. Fields amended his

existing notice of appeal to add this post-judgment decision. See Fed. R. App. P.

4(a)(4)(B)(ii), (iii).

-3-

analysis on the merits. Fields appealed, and the district 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 summary judgment motion is not a

legally sufficient basis on which to grant the motion 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 required by Rule 56(c).

Accordingly, summary judgment is ‘appropriate’ under Rule 56(e)

only when the moving party has met its initial burden of production

under Rule 56(c). If the evidence produced in support of the

summary judgment motion does not meet this burden, ‘summary

judgment must be denied even if no opposing evidentiary matter is

presented.’ [Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970)]

(quoting Fed. R. Civ. P. 56 advisory committee notes to the 1963

amendments) (emphasis added). If the nonmoving party fails to

respond, the district court may not grant the motion without first

examining the moving party’s submission to determine if it has met

its initial burden of demonstrating that no material issues of fact

remain for trial and the moving party is entitled to judgment as a

matter of law. If it has not, summary judgment is not appropriate,

for ‘[n]o defense to an insufficient showing is required.’ Id. at 161.

To summarize, a party’s failure to file a response to a summary

judgment motion is not, by itself, a sufficient basis on which to enter

judgment against the party. The district court must make the

additional determination that judgment for the moving party is

‘appropriate’ under Rule 56. Summary judgment is appropriate only

if the moving party demonstrates that no genuine issue 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 specified 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 principles, the district court’s ruling

cannot stand on its stated rationale. Furthermore, given the multiplicity of legal

issues and the voluminous evidentiary materials, none 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. Rather, we follow Reed and

remand the matter for consideration by the district court. See id. at 1196.

Finally, we note that the district court “has discretion to sanction a party

for failing to prosecute or defend a case, or for failing to comply with local or

federal procedural rules,” and in proper circumstances the sanction “may include

dismissing the party’s case with prejudice or entering 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 would not serve the ends of

justice.” Id. (quotation omitted). Moreover, we require the district court to

address several relevant factors before it may impose such a sanction. Id.

at 1195-96. None of these matters was considered by 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 order and judgment.

Entered for the Court

Carlos F. Lucero

Circuit Judge