* 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

August 14, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JERRY WAYNE SMITH,

Plaintiff-Appellant,

v.

DAVID R. MCKUNE, Warden;

JOHN R. COOLING; ROBERT

ARNOLD; T. ROGERS; BILL

CUMMINGS; CHARLES SIMMONS;

KANSAS DEPARTMENT OF

CORRECTIONS; LISA MEYRICK;

JANE DOES; JOHN DOES,

Defendants-Appellees.

No. 08-3253

(D.C. No. 5:05-CV-03447-MLB)

(D. Kan.)

ORDER AND JUDGMENT*

Before TACHA, PORFILIO, and ANDERSON, Circuit Judges.

Plaintiff-appellant Jerry Wayne Smith appeals pro se from an

August 20, 2008, order of the district court dismissing with prejudice his pro se
1 Rule 37(d)(1)(A)(i) authorizes a district court to impose sanctions if a party

fails to appear for his deposition after being served with proper notice. Sanctions

for failure to appear “may include any of the orders listed in Rule

37(b)(2)(A)(i)-(vi),” Fed. R. Civ. P. 37(d)(3), which includes dismissing the

action in whole, Fed. R. Civ. P. 37(b)(2)(A)(v).

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civil rights lawsuit against various Kansas prison officials as a Fed. R. Civ. P. 37

sanction for, among other things, twice failing to appear for a scheduled

deposition.1

 He also appeals from a January 17, 2008, order of the district court

dismissing defendant Kansas Department of Corrections (KDOC), upon finding

the KDOC a state agency entitled to Eleventh Amendment immunity. 

As accurately set forth in the district court’s August 2008 order,

The long and tortured history of this case is reflected in the

court file, which now spans three volumes. . . . Plaintiff failed to

appear on May 20, 2008 for his deposition, which prompted

defendants’ second motion to impose sanctions. By order of

July 18, 2008, the court reluctantly granted plaintiff’s motion for

additional time to respond to defendants’ motion to impose sanctions

and, in addition, directed that defendants re-notice plaintiff’s

deposition to be taken at the U.S. Courthouse in Wichita, Kansas. 

The order expressly stated “If plaintiff fails to appear for and fully

participate in his deposition on the date and time noticed, this case

will be dismissed, with prejudice.” (Doc. 163). By letter of July

29, 2008, plaintiff acknowledged receipt of the court’s July 18 order

and claimed that he was hospitalized. (Doc. 165). Plaintiff’s

deposition was noticed for August 18 at 9:30 a.m. On August 8,

plaintiff left a voice mail with defendants’ counsel stating that he

would appear for his deposition but as of noon, August 18, plaintiff

had not appeared and had not been in contact with defendants’

counsel. (Doc. 166).

R. Doc. 167 at 1-2. The court acknowledged its familiarity with plaintiff’s claims

of illness and “other excuses such as equipment failure,” which it said it
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“accepted . . . albeit with reservation and skepticism because plaintiff’s problems,

whether real, manufactured or imagined, have not prevented him from filling the

file with prolix pleadings, submissions, correspondence and exhibits.” Id., Doc.

167 at 3. The court also found that “[a]fter almost three years, it is apparent that

plaintiff, for whatever reason, will not follow the rules unless they suit his

schedule and his one-sided view regarding how the case should proceed.” Id. As

such, the court applied the factors set forth in Ehrenhaus v. Reynolds, 965 F.2d

916, 921 (10th Cir. 1992), found the equities weighed in defendants’ favor, and

dismissed plaintiff’s lawsuit with prejudice. This appeal followed.

Our jurisdiction arises under 28 U.S.C. § 1291. We review the imposition

of a Rule 37 sanction for an abuse of discretion. Nat’l Hockey League v. Metro.

Hockey Club, Inc., 427 U.S. 639, 642 (1976); Ehrenhaus, 965 F.2d at 920. 

Because “dismissal of an action with prejudice is a drastic sanction that should be

employed only as a last resort,” Davis v. Miller, 571 F.3d 1058, 1061 (10th Cir.

2009), it is “appropriate only in cases of willful misconduct,” Ehrenhaus,

965 F.2d at 920. Thus, before dismissing a case under Rule 37, the district court

should ordinarily consider a number of factors, including: (1) the

degree of actual prejudice to the defendant; (2) the amount of

interference with the judicial process; . . . (3) the culpability of the

litigant; (4) whether the court warned the party in advance that

dismissal of the action would be a likely sanction for noncompliance;

and (5) the efficacy of lesser sanctions.
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Id. at 921 (citations and quotation omitted). Further, when a party appears pro se,

“the court should carefully assess whether it might . . . impose some sanction

other than dismissal, so that the party does not unknowingly lose its right of

access to the courts because of a technical violation.” Id. at 920 n.3. “Only when

the aggravating factors outweigh the judicial system’s strong predisposition to

resolve cases on their merits is dismissal an appropriate sanction.” Id. at 921

(quotation omitted). 

Mindful that plaintiff is proceeding pro se, we liberally construe his 

appellate brief. Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998). He

contends the district court abused its discretion by dismissing his case with

prejudice because he suffers from serious mental illnesses, including major

depression and post traumatic stress disorder, and that his hospitalization for

these illnesses prevented him from attending his August 18 deposition. He claims

the district court was wrong to characterize his illnesses as “real, manufactured or

imagined,” because medical documentation demonstrates that he suffers from

severe disorders. Likewise, he takes issue with the court’s characterization of his

printer’s failure as an “excuse,” apparently because he views such a failure as 

commonplace. In answer to the district court’s finding that he does not follow the

rules, he asserts that he “has followed the rules to the extent it is humanly

possible on [his] part.” Aplt. Br. at 22. 
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Defendants counter that the district court did not abuse its discretion in

dismissing plaintiff’s case with prejudice because it properly considered the

applicable Ehrenhaus factors, and its findings are supported by competent

evidence. 

The district court found the following with regard to the Ehrenhaus factors:

[D]efendants have been prejudiced by plaintiff’s persistent failure to

prosecute this case in an orderly and timely fashion and to comply

with orders of this court. Defendants will continue to be prejudiced

by plaintiff’s conduct. Plaintiff has not merely interfered with the

judicial process; he has continually obstructed and manipulated it and

there is no reason to believe that his conduct will cease. Plaintiff is

fully culpable for the failure of this case to move forward. The court

previously has warned plaintiff regarding dismissal. (Doc. 55). 

Finally, lesser sanctions are not just lacking in efficacy. Monetary

sanctions are meaningless to a plaintiff who has been allowed to

proceed in forma pauperis and the sanctions set out in Fed. R. Civ. P.

37 will not substitute for plaintiff’s failure to appear–twice–for his

deposition.

R. Doc. 167 at 3-4. 

Having reviewed the briefs, the record, and the applicable law pursuant to

the above-mentioned standards, we agree with the district court’s decision to

grant defendants’ motions for sanctions and dismiss plaintiff’s case with

prejudice. See Ehrenhaus, 965 F.2d at 918 (“It is within a court’s discretion to

dismiss a case if, after considering all the relevant factors, it concludes that

dismissal alone would satisfy the interests of justice.”). 

Plaintiff next contends that the district court erroneously dismissed

defendant KDOC on Eleventh Amendment grounds. Having conducted a de novo
2 Plaintiff’s notice of appeal identifies two other orders of the district court

that he claims to be appealing, one dated October 10, 2007, and another dated

July 18, 2008. But because his opening brief contains no argument regarding

these orders (even though it mentions them) we deem waived any challenge he

may have brought. Phillips v. Calhoun, 956 F.2d 949, 954 (10th Cir. 1992)

(observing that “even issues designated for review are lost if they are not actually

argued in the party’s brief”). 

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review of that determination, Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250,

1253 (10th Cir. 2007) (noting that “Eleventh Amendment immunity is a question

of federal law and our review is de novo”), we conclude that plaintiff has not

identified any reversible error in the district court’s decision.

Finally, plaintiff contends that the district court erred by not ruling on his

request for appointment of counsel. We see no merit in this contention.2

We AFFIRM the challenged decisions for substantially the same reasons as

stated in the orders dated August 20, 2008, and January 17, 2008. Plaintiff’s

motion to proceed without prepayment of costs or fees is GRANTED.

Entered for the Court

Stephen H. Anderson

Circuit Judge