* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### FEB 13 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EARL D. COOPER, JR., Plaintiff-Appellant,

v. JAMES SAFFLE, Director; REGINALD HINES, Warden; J. SANDEFIRD, Assistant Warden; STEPHEN BURNETT, Captain; SGT. CURL; CORPORAL MAYHUE; SGT. WYATT; SGT. COTHERN; LPN. McDANIEL; DEBBIE MAHAFFEY, Warden; CHARLIE ARNORLD, Major; CAPTAIN MOORE; C. WAIDON, Case Manager; GARY GIBSON, Warden; J. MIKE PRUITT; TEEL, U.C.M.; SHERRY ALLEN; THE STATE OF OKLAHOMA; OKLAHOMA DEPARTMENT OF CORRECTIONS, Defendants-Appellees. No. 01-7107 (Eastern District of Oklahoma) (D.C. No. 00-CV-705-S)

ORDER AND JUDGMENT *1 The district court also denied Cooper’s request to file an amended

complaint because he failed to comply with Local Ru le 15.1 which requires leave of court before incorporating any prior pleading by reference in an amended complaint. In its minute order, the court directed Cooper to either comply with the local rule; raise any additional claims in a ne w § 1983 complaint; or if appropriate, file a petition for a writ of habeas c orpus. Cooper’s appellate brief contains no argument challenging the court’s ruling and the issue is, therefore, deemed waived. See Coleman v. B-G Maint. Mgmt. of Colo., Inc. , 108 F.3d 1199, 1205 (10th Cir. 1997) (“Issues not raised in the op ening brief are deemed Before HENRY , BRISCOE , and MURPHY , Circuit Judges.

After examining the parties’ briefs and the appellate record, this court has determined unanimously that oral argument would notmaterially 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 ora l argument. Appellant Earl D. Cooper, Jr., an Oklahoma state pr isoner, filed a complaint pursuant to 42 U.S.C. § 1983 wherein he a lleged numerous violations of his federal civil rights by Defendants. Defenda nts filed a Motion to Dismiss/Motion for Summary Judgment on June 5, 2001 . Cooper did not file a response to Defendants’ motion as required by the l ocal civil rules for the Eastern District of Oklahoma. See E.D. Okla. Local Civ. R. 7.1(B). Local Rule 7.1(B ) requires a party to respond to a motion within fift een days and provides that the failure to respond “constitute[s] a confession of t he matters raised by the” motion. Id . The district court dismissed Cooper’s complaint with prejudice for failure to follow Local Rule 7.1(B). Cooper brought this appe al. 1abandoned or waived.”).

2 While Defendants direct this court to Murray v. Archambo , 132 F.3d 609, 610 (10th Cir. 1998) to support their position thatthe district court’s dismissal of Cooper’s complaint is reviewed for an abuse of disc retion, their appellate brief contains no discussion of the three factors analyze d in detail in Murray

. -3- This court reviews the dismissal of a complaint und er Local Civil Rule 7.1(B) for an abuse of discretion. See Murray v. Archambo , 132 F.3d 609, 610 (10th Cir. 1998); see also E.D. Okla. Local Civ. R. 1.1(F) (“A Judge may waiv e any requirement of these Rules when the administrat ion of justice requires waiver.”). “[A] dismissal for violation of [a] loc al rule [is] a severe sanction reserved for the extreme case, and is only appropri ate where a lesser sanction would not serve the ends of justice.” Hancock v. City of Okla. City , 857 F.2d 1394, 1396 (10th Cir. 1988). Accordingly, this cou rt requires district courts to analyze three factors before dismissing a complaintfor failure to comply with local court rules. See Murray , 132 F.3d at 611. 2 The court must consider “(1) the degree of actual prejudice to the defendant; (2) th e amount of interference with the judicial process; [and] (3) the culpability of the litigant.” Hancock, 857 F.2d at 1396. The complaint should be dismissed with pr ejudice “only when these aggravating factors outweighed the judicial system’ s strong predisposition to resolve cases on their merits.” Id

. Here, the district court dismissed Cooper’s complai nt in a minute order dated July 3, 2001 that reads as follows, “Minute O rder: granting defendants’3 This order disposed of a Motion to Amend Civil Righ ts Suit filed by

Cooper less than ten days after the district court dismissed his complaint. The court apparently treated Cooper’s motion as a motio n to alter or amend judgment pursuant to Rule 59(e) of the Federal Rules of Civi l Procedure. -4- motion to dismiss or for summary judgment and closi ng case for plaintiff’s failure to respond pursuant to Local Rule 7.1(B).” In a wr itten order dated September 6, 2001, 3 the court briefly engaged in the analysis set out in Hancock and Murray

. The court’s analysis, however, was flawed. In part icular, the court concluded that the dismissalof Cooper’s complaint did not prejudice the defend ants, but the proper inquiry is whether Cooper’s failure to comply with the local rule prejudiced Defendants. Further, the district courtalso concluded that the dismissal did not interfere with the judicial proce ss. The court must, instead, determine whether Cooper’s failure to respond to th e motion interfered with the judicial process. Finally, the district court did not state how the three factors outweighed the “strong predisposition to resolve ca ses on their merits.” Id

. We conclude that the district court’s analysis was both flawed and insufficient. Consequently, the court abused its d iscretion when it dismissed Cooper’s complaint. This court has conducted an in dependent analysis of the three factors and cannot discern how either Defendants or the judicial process were prejudiced by Cooper’s failure to comply with Local Rule 7.1(B) and file a response to Defendant’s motion. Any prejudice to t he court in not having the-5-

benefit of Cooper’s pro se response before ruling on Defendants’ motion canno t be said to constitute an “‘intolerable burden on [t he] district court’ that would justify dismissal.” Meade v. Grubbs , 841 F.2d 1512, 1521 (10th Cir. 1988). Even assuming that Cooper was completely culpable f or his failure to comply with Local Rule 7.1(B), the applicable factors clearly do not outweigh the strong predisposition to resolve this case on its merits. See Hancock , 857 F.2d at 1396; see also Meade , 841 F.2d at 1521 (“[D]ismissal is usually appropr iate only where a lesser sanction would not serve the interest of j ustice.” (quotation omitted)). This court reverses the order dismissing Cooper’s complaint and remands this matter to the district court for further proce edings not inconsistent with this opinion.
ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge