* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### MAY 5 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FERMAN JONES,

Plaintiff-Appellant,

v. SGT. TRAWICK,

Defendant-Appellee. No. 98-6352 (D.C. CIV-97-2050-M) (Western District of Oklahoma)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BALDOCK , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Mr. Jones, proceeding pro se, appeals the district court's dismissal of his2

employment discrimination action without prejudice, conditioned on his payment to defendant, prior to re-filing, of defendant's attorney's fees in the sum of $4,967.00. The district court also denied him leav e to proceed in forma pauperis (IFP) on appeal, finding that his appeal was legall y frivolous and not taken in good faith. Mr. Jones renews his motion for in for ma pauperis status on appeal. We deny his motion to proceed IFP on appeal and dis miss his appeal. The district court dismissed Mr. Jones' claim witho ut prejudice, requiring him to pay defendant's attorney's fees prior to re- filing, because Mr. Jones had twice failed to appear at his scheduled deposition, had failed to attend or participate in court-ordered mediation despite havi ng agreed to such mediation at the scheduling conference, and had engaged in writt en ex parte communications with the district judge in violation of court rules . Mr. Jones argues the court unfairly dismissed his action. We review the distr ict court’s imposition of sanctions on a party who violates court rules or fa ils to follow orders of the court for abuse of discretion. See M.M. v. Zavaras , 139 F.3d 798, 802 (10th Cir. 1998). Under the Western District of Oklahoma’s Local Rul e 16.1, the district court is authorized to issue any sanction “the Court . . . deem[s] just and appropriate” for a party’s “failure to participate in [pre-trial proceedings in] good faith.” Permissible sanctions include issuing a de fault judgment or assessing expenses and fees. W.D.OK.LR16.1. Further, under Fed. R. Civ. P. 37(d), when3

a party fails to appear at his own deposition, the district court is authorized both to dismiss the action and to “require the party . . . to pay the reasonable expenses, including attorney’s fees, caused by the failure un less the court finds that the failure was substantially justified or that other c ircumstances make an award of expenses unjust.” Here, although Mr. Jones suggests that he needed ad ditional time to secure information, he does not proffer any reasoned justi fication for his failure to comply with the court rules or to attend his schedu led deposition. While we are obliged to construe pro se pleadings liberally, pro se litigants “must follow the same rules of procedure that govern other litigants.” Green v. Dorrell , 969 F.2d 915, 917 (10 th Cir. 1992). “Although dismissal is indeed a drast ic sanction, we have repeatedly upheld dismissals in situations whe re the parties themselves neglected their cases or refused to obey court orders.” Id. Thus, the district court’s sanction of dismissal without prejudice subject to payment of attorney's fees was not an abuse of its discretion. Further, we agree with the district court that, as Mr. Jones has merely repeated his conclusory allegations without providi ng any justification for his failure to comply with the court's orders and rules , his appeal is frivolous and not presented in good faith.4

Therefore, we DENY Mr. Jones' motion to proceed IFP and DISMISS his appeal.

Entered for the Court,

Robert H. Henry Circuit Judge