* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or 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 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument. Carl W. Connelly brought suit against three supervi sors and one co--2-

employee of the New Mexico Taxation and Revenue Dep artment, Motor Transportation Division, alleging claims under Titl e 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 emp loyment action, filed on June 28, 1995, by the law offices of W.T. Martin, J r. 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. Wh ile Mr. Connelly was searching for new counsel defendants served a motio n on August 5, 1996, to compel an independent psychological evaluation of M r. Connelly, the production of certain documents, and payment of costs. On Aug ust 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 newcounsel. Defendants contacted Mr. Lesly about the discovery motion, butMr. 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 Deato n 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 t he production of Mr.1 Mr. Lesly allegedly mailed a response to defendant s’ motion for summary

judgment on res judicata grounds on October 29. Th e response was filed in the district court on November 1--two days after the co urt had already dismissed the action and well past the due date. -3- Connelly’s medical records and 1995 tax returns. T he order also specifically admonished Mr. Connelly to cooperate in discovery o r have his action dismissed. Although defendants received a check for the paymen t of costs, Mr. Connelly failed to comply with the rest of the order. In the meantime, on September 11, one of the defend ants moved for summary judgment contending that as a co-employee h e was not a proper defendant in a Title VII or section 1983 action. O n September 30, defendants moved for summary judgment on res judicata grounds. Mr. Connelly’s responses to these motions were due on September 30, and Octo ber 17, respectively. Mr. Connelly did not timely respond to either of them. 1
A Rule 16 settlement conference was scheduled for O ctober 16. Neither Mr. Connelly, Mr. Word, nor Mr. Lesly attended the conference. Nor did they provide notice or an explanation to the court for t heir absence. On October 28, because defendants had not received any response from Mr. Connelly or his attorneys concerning the summary ju dgment motions, defendants submitted papers which outlined Mr. Connelly’s fail ure to prosecute this case and requested that the action be dismissed. On October30, the district court granted-4-

the summary judgment motions and dismissed the case with prejudice, specifically citing as grounds for dismissal Mr. Connelly’s fail ure 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 t o attend the settlement conference. Although the district court characterized its dismi ssal as a grant of summary judgment, we view the order more properly a s an involuntary sanction dismissal under Fed. R. Civ. P. 16(f), 37(b)(2), an d 41(b) for a party’s failure to appear at a pretrial conference, obey discovery ord ers, or prosecute an action. We review such dismissals under an abuse of discretionstandard. Jones v. Thompson , 996 F.2d 261, 264 (10th Cir. 1993). Before imposing dismissal as a sanction, the distri ct court must consider the following factors: the degree of actual prejudice to the defendant; the amount of interference with the judicial process; the culpabi lity 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 les ser sanctions. Id. These factors do not constitute a “rigid test,” but rathe r 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 s trong predisposition to resolve-5-

cases on their merits is dismissal an appropriate s anction. Id. Although dismissal is a drastic sanction, “we have repeatedly upheld dismissals in situations where the parties themselv es 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 in cident of negligence or noncompliance, but rather a persistent failure to p rosecute 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 bett er 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 dism issing 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