UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

JACOB WAYNE BRAUNING, 

 Plaintiff - Appellant,

v.

JOHN GILBERT CHRISTIAN, individual 

and Sheriff of Pontotoc County; 

CHARLES STEVEN KESSINGER, 

individual and District Judge of Pontotoc 

County; LORI LYNN JACKSON, 

individual and Associate District Judge; 

GREGORY D. POLLARD, individual and 

Special District Judge; SONYA RENEA 

CHRONISTER, individual and former 

Assistant District Attorney; KAREN LYN 

DUNNIGAN, individual and Court Clerk, 

Pontotoc County; ALVIN D. FILES, 

individual and Officer of the Court; 

ARNOLD GORDON SCOTT, individual 

and Undersheriff of Pontotoc County; 

MICHAEL LEE WALKER, individual and 

Deputy Sheriff; TODD O’NEIL YOUNG, 

individual and Deputy Sheriff; DEREK 

RAY STEWART, individual and Deputy 

Sheriff; ANTHONY LOUIE, individual 

and Sheriff; MATTHEW ROBERT 

HALEY, individual and Deputy Sheriff; 

STEVE PATRICK WILLIAMS, individual 

and Deputy Sheriff; GARY LEON 

BROOKS, individual and Deputy Sheriff; 

CANDICE MICHELLE IRBY, individual 

and Assistant District Attorney; WILLIAM 

RICHARD HAYDEN, individual and OHP 

Trooper; CARY MICHAEL JACKSON, 

individual and CFO at Oklahoma Heritage 

Bank; CHANCE DAVID BRANSCUM, 

individual and Credit Officer at Oklahoma 

No. 23-7063

(D.C. No. 6:21-CV-00199-RAW)

(E.D. Okla.)

FILED

United States Court of Appeals

Tenth Circuit

August 14, 2024

Christopher M. Wolpert

Clerk of Court

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Heritage Bank; OKLAHOMA HERITAGE 

BANK, an Oklahoma corporation; JAMES 

ROBERT HAMBY, individual and CEO of 

Vision Bank, NA; BRANDON LEE 

TILLEY, individual and Loan Organizer at 

Vision Bank, NA; ANDREW DUANE 

GIBSON, individual and Loan Organizer at 

Vision Bank, NA; VISION BANK, N.A.; 

BRANDON WAYNE SMITH, individual 

and registered agent of Next Up Towing & 

Recovery, LLC, 

 Defendants - Appellees.

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before HOLMES, Chief Judge, HARTZ, and ROSSMAN, Circuit Judges.

_________________________________

Plaintiff, Jacob Wayne Brauning, filed a federal lawsuit against government 

officials and private entities and individuals for alleged constitutional, federal, and 

state law violations. The district court dismissed Mr. Brauning’s lawsuit under Rule 

41(b) of the Federal Rules of Civil Procedure after Mr. Brauning failed to respond to 

(1) the defendants’ motions to dismiss and (2) the district court’s order to show cause 

why his lawsuit should not be dismissed. Mr. Brauning filed this appeal. Exercising 

jurisdiction under 28 U.S.C. § 1291, we affirm.

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

unanimously that oral argument would not materially assist in 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.

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I. Background

Mr. Brauning received a loan in January 2018 which eventually resulted in 

foreclosure proceedings and related collection efforts. In July 2021, he filed a pro se 

lawsuit alleging seventeen claims against twenty-five defendants involved in 

foreclosure or collection, including law enforcement officials and judges.

1

Eleven groups of defendants filed motions to dismiss beginning in September 

2021. Mr. Brauning requested—and received—an extension of time to respond to the 

first batch of motions. Three more defendants filed motions to dismiss on November 

18 and 19, 2021, to which Mr. Brauning’s responses were due on December 2 and 3, 

2021.

Those deadlines passed, however, without Mr. Brauning having filed any 

responses—although he sent the district court four letters in December 2021

apprising the court of his whereabouts and alleging various retaliatory acts by the 

defendants in response to his lawsuit.

In August 2022, the district court ordered Mr. Brauning to show cause by 

September 6, 2022, as to why the pending motions to dismiss should not be granted. 

The district court warned Mr. Brauning that his failure to do so would result in the 

case being dismissed or the motions to dismiss deemed confessed. Again, the 

deadline passed with no response from Mr. Brauning.

1 We liberally construe Mr. Brauning’s pro se filings, but we do not act as his 

advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 

(10th Cir. 2005).

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On September 16, 2022, the district court entered an order concluding that 

dismissal with prejudice was warranted, given Mr. Brauning’s failure to respond to 

the motions to dismiss and the district court’s show cause order. The clerk then 

entered judgment against Mr. Brauning a few weeks later.

On October 21, 2022, Mr. Brauning filed a pleading captioned “Omnibus 

Motion.” R. at 342. The district court construed it as a motion for reconsideration

under Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure and denied it in 

an order entered August 8, 2023. Mr. Brauning noticed this appeal on August 30, 

2023.

II. Discussion

Mr. Brauning seeks to challenge the district court’s dismissal of his lawsuit.2

 

But he filed his notice of appeal more than 11 months after the district court’s 

dismissal order. Generally, a notice of appeal must be filed 30 days after entry of the 

judgment or order appealed from. Fed. R. App. P. 4(a)(1)(A). The timing of the

notice of appeal raises a threshold issue: do we have appellate jurisdiction to review 

the dismissal order? See Bowles v. Russell, 551 U.S. 205, 210 (2007) (recognizing 

that “the courts of appeals routinely and uniformly dismiss untimely appeals for lack 

of jurisdiction”). We conclude we have jurisdiction. 

Rule 4(a)(4)(A) of the Federal Rules of Appellate Procedure provides that if a 

party files a Rule 59(e) or Rule 60(b) motion, “the time to file an appeal runs for all 

2 He does not appear to challenge the district court’s denial of his motion for 

reconsideration.

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parties from the entry of the order disposing of the last such remaining motion.” We 

agree with the district court that, liberally construed, Mr. Brauning’s “Omnibus 

Motion” was a motion for reconsideration under Rule 59(e) or 60(b), which tolled the 

notice of appeal deadline under Rule 4(a)(4)(A). Because Mr. Brauning filed his 

notice of appeal within 30 days of the district court’s denial of his motion for 

reconsideration, it was timely with respect to the underlying dismissal order, and we 

therefore have jurisdiction to review it.

Mr. Brauning correctly identifies the applicable standard of review, arguing 

the district court’s dismissal of his lawsuit was an abuse of discretion. See Nasious v. 

Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007). We discern no 

abuse of discretion here, however. 

Rule 41(b) of the Federal Rules of Civil Procedure provides “[i]f the plaintiff 

fails to prosecute or to comply with these rules or a court order, a defendant may 

move to dismiss the action or any claim against it.” Though the text of the Rule

requires a defendant move to dismiss, “the Rule has long been interpreted to permit 

courts as here to dismiss actions sua sponte for a plaintiff’s failure to comply with the 

rules of civil procedure or the court’s orders.” Nasious, 492 F.3d at 1161 n.2

(brackets, ellipsis, and internal quotation marks omitted). A district court should 

ordinarily consider the following non-exhaustive list of factors in determining 

whether to dismiss an action under Rule 41(b):

(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 

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action would be a likely sanction for noncompliance; and (5) the 

efficacy of lesser sanctions.

Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (ellipsis, citations, and 

internal quotation marks omitted). Mr. Brauning argues the dismissal of his lawsuit 

violated his due process rights, but dismissal could be an appropriate sanction “when 

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

resolve cases on their merits.” Id. 

Here, the district court’s dismissal order correctly identified the Ehrenhaus 

factors and applied them to the circumstances of Mr. Brauning’s case. The

district court observed that under Ehrenhaus, delay and mounting attorney fees 

constitutes prejudice to the defendants, and failing to comply with a show cause order 

constitutes interference with the judicial process. See Ehrenhaus, 965 F.2d at 921. 

Mr. Brauning was culpable, the district court reasoned, because he failed to respond 

to the motions to dismiss and did not respond to the district court’s show cause 

order.3

 Importantly, the district court explicitly warned Mr. Brauning in its show 

cause order that failure to respond could result in dismissal. Finally, the district court 

concluded that lesser sanctions would be ineffective because Mr. Brauning had failed 

to comply entirely with the court’s orders. The district court did not err in 

application of the Ehrenhaus factors, and under the circumstances of this case, acted 

3 Mr. Brauning makes the conclusory assertion that the defendants impeded his 

ability to prosecute the case, but he does not elaborate, so we consider the argument 

waived. See United States v. De Vaughn, 694 F.3d 1141, 1154–55 (10th Cir. 2012)

(“It is well-settled that arguments inadequately briefed in the opening brief are 

waived.” (internal quotation marks omitted)).

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within its discretion to dismiss Mr. Brauning’s lawsuit as a sanction for his failure to 

prosecute.

III. Conclusion

We affirm the dismissal of Mr. Brauning’s lawsuit, and we deny his motion for 

appointment of counsel. We grant his motion for leave to proceed in forma pauperis.

Entered for the Court

Veronica S. Rossman

Circuit Judge

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