*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, or collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 12 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CARL W. CONNELLY,

Plaintiff-Appellant,

v.

LARRY KEHOE; TIM DABBS;

CHARLIE DANIELS; and CARL

JOHNSON, in their individual and

official capacities,

Defendants-Appellees.

No. 96-2284

(D.C. No. CIV-95-692-LH)

(New Mexico)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, Circuit Judges.

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); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.

Carl W. Connelly brought suit against three supervisors and one co-
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employee of the New Mexico Taxation and Revenue Department, Motor

Transportation Division, alleging claims under Title VII and 42 U.S.C. § 1983. 

The district court ultimately dismissed this action with prejudice as a sanction. 

Mr. Connelly appeals and we affirm. 

Mr. Connelly was originally represented in this employment action, filed on

June 28, 1995, by the law offices of W.T. Martin, Jr. On June 17, 1996, Mr.

Martin moved to withdraw as counsel because of Mr. Connnelly’s failure to

cooperate and pay costs incurred on his behalf. While Mr. Connelly was

searching for new counsel defendants served a motion on August 5, 1996, to

compel an independent psychological evaluation of Mr. Connelly, the production

of certain documents, and payment of costs. On August 28, the district court

permitted Mr. Martin to withdraw and granted entry of local attorney Terry Word

and Texas attorney John Lesly as Mr. Connelly’s new counsel. Defendants

contacted Mr. Lesly about the discovery motion, but Mr. Lesly never returned

their telephone calls. On September 6, defendants filed a motion to compel

detailing Mr. Connelly’s history of delay and asserting defendants’ prejudice. 

They submitted a proposed order to Magistrate Deaton along with a letter

indicating that they had never received a response from Mr. Lesly. A copy of this

letter was also mailed to Mr. Lesly. On October 3, Magistrate Deaton granted the

motion to compel and ordered payment of costs and the production of Mr.
1

 Mr. Lesly allegedly mailed a response to defendants’ motion for summary

judgment on res judicata grounds on October 29. The response was filed in the

district court on November 1--two days after the court had already dismissed the

action and well past the due date.

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Connelly’s medical records and 1995 tax returns. The order also specifically

admonished Mr. Connelly to cooperate in discovery or have his action dismissed. 

Although defendants received a check for the payment of costs, Mr. Connelly

failed to comply with the rest of the order. 

In the meantime, on September 11, one of the defendants moved for

summary judgment contending that as a co-employee he was not a proper

defendant in a Title VII or section 1983 action. On September 30, defendants

moved for summary judgment on res judicata grounds. Mr. Connelly’s responses

to these motions were due on September 30, and October 17, respectively. Mr.

Connelly did not timely respond to either of them.1

A Rule 16 settlement conference was scheduled for October 16. Neither

Mr. Connelly, Mr. Word, nor Mr. Lesly attended the conference. Nor did they

provide notice or an explanation to the court for their absence. 

On October 28, because defendants had not received any response from Mr.

Connelly or his attorneys concerning the summary judgment motions, defendants

submitted papers which outlined Mr. Connelly’s failure to prosecute this case and

requested that the action be dismissed. On October 30, the district court granted
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the summary judgment motions and dismissed the case with prejudice, specifically

citing as grounds for dismissal Mr. Connelly’s failure to respond to these motions

which constituted his consent to them under local rules, his failure to comply with

the Magistrate’s discovery order, and his failure to attend the settlement

conference. 

Although the district court characterized its dismissal as a grant of

summary judgment, we view the order more properly as an involuntary sanction

dismissal under Fed. R. Civ. P. 16(f), 37(b)(2), and 41(b) for a party’s failure to

appear at a pretrial conference, obey discovery orders, or prosecute an action. We

review such dismissals under an abuse of discretion standard. Jones v.

Thompson, 996 F.2d 261, 264 (10th Cir. 1993).

Before imposing dismissal as a sanction, the district court must consider the

following factors: the degree of actual prejudice to the defendant; the amount of

interference with the judicial process; the culpability of the litigant; whether the

court warned the party in advance that dismissal of the action would be a likely

sanction for noncompliance; and the efficacy of lesser sanctions. Id. These

factors do not constitute a “rigid test,” but rather represent criteria to guide the

court in its decision. Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992). 

Ordinarily the district court should address these factors on the record. Id. Only

when these factors outweigh the judicial system’s strong predisposition to resolve
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cases on their merits is dismissal an appropriate sanction. Id. 

Although dismissal is a drastic sanction, “we have repeatedly upheld

dismissals in situations where the parties themselves neglected their cases or

refused to obey court orders.” Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.

1992). Here, Mr. Connelly has repeatedly failed to cooperate in the discovery

process and obey court orders and rules, which has resulted in delaying these

proceedings. Despite the Magistrate’s explicit warning of dismissal, Mr.

Connelly failed to comply with the discovery order, missed a scheduled settlement

conference, and failed to timely file responses to defendants’ summary judgment

motions. We are not confronted with an isolated incident of negligence or

noncompliance, but rather a persistent failure to prosecute the complaint

justifying dismissal. See Meade v. Grubbs, 841 F.2d 1512, 1518 n.6, 1521-22

(10th Cir. 1988). Although it would have been better if the district court had

explicitly discussed the factors listed above, our review of the record persuades us

that the court did not abuse its discretion in dismissing Mr. Connelly’s claim. See

Green, 969 F.2d at 919.

We AFFIRM the order of the district court.

ENTERED FOR THE COURT

Stephanie K Seymour

Chief Judge