* This order and judgment is not binding precedent, e xcept under the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

### JUL 6 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JIMMY LYN FARRELL,

Plaintiff-Appellant,

v. WILLIAM S. KEYS; JIM E. HAMILTON; DOLORES RAMSEY,

Defendants-Appellees. No. 00-7111 (D.C. No. 99-CV-660-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , ANDERSON , and KELLY , 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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Appellant Jimmy Lyn Farrell, a state prisoner appearing pro se, appeals from summary judgment granted in favor of appellees and the dismissal of his-2-

civil rights complaint brought pursuant to 42 U.S.C . § 1983 following his failure to respond to a motion to dismiss and for summary j udgment. We exercise jurisdiction under 28 U.S.C. § 1291 and reverse the grant of summary judgment, but we remand for dismissal. In his complaint, Mr. Farrell sought compensatory d amages, return to good-time credit Level 4, and restoration of good-t ime credits that were revoked after his disciplinary conviction for bartering (orattempting to barter) in a prison administrative misconduct proceeding. Defendants/appellees contended that Mr. Farrell had bartered his services as a “jailhouse l awyer” to another convict, Frank Hensley, in exchange for a $20 money order made outto Mr. Farrell and sent to Mr. Hensley by Debbie Hensley. Although his complaint is somewhat difficult to par se, Mr. Farrell appears to allege that his due process rights were violatedbecause the evidence did not support his disciplinary conviction and because the prison officials refused to bring a prison law library log book and the Hensley s to his misconduct hearing.
See R. Doc. 2 at 31, 34. He claimed that the law libr ary log would show that he had not performed legal services for Mr. Hensley atthe law library. The district court ordered a Martinez report. See Martinez v. Aaron , 570 F.2d 317, 319-20 (10th Cir. 1978).1 Local Rule 7.1(B) requires filing of a pleading or response to a motion

within fifteen days and provides that failure to co mply with this provision constitutes a “confession of the matters raised by the pleadings” at issue. -3- Mr. Farrell requested appointment of counsel in Mar ch 2000, alleging that prison officials would not allow him to go to the l aw library to research his case and that he could not afford to hire a lawyer. R. Doc. 13. In May 2000 defendants filed a motion to dismiss and for summary judgment, arguing that Mr. Farrell’s claims should have been brought in a habe as petition; that the process Mr. Farrell received satisfied constitutional stand ards as a matter of law; that one defendant was entitled to qualified immunity; and that all defendants were protected by Eleventh Amendment immunity. Id. Doc. 15. The defendants also moved to consolidate this case with another suit filed by Mr. Farrell . Mr. Farrell responded to the motion to consolidate and apparent ly believed he had responded to the motion for summary judgment; however, no res ponse to the motion for summary judgment was filed in the district court. As a result, on October 2, 2000, the federal district court issued a minute or der, granting the defendants’ motion for summary judgment and dismissing Mr. Farr ell’s complaint pursuant to Eastern District of Oklahoma’s Local Rule 7.1(B) fo r failure to respond to the motion. 1
We review the district court’s dismissal of Mr. Farrell’s complaint for failure to comply with Local Rule 7.1(B) for an abuse of discretion. See Murray2 We note that other circuits do not permit the entryof summary judgment

on this basis without a determination on the merits of the Rule 56 motion. See, e.g. , Stough v. Mayville Comty. Sch. , 138 F.3d 612, 614-15 (6th Cir. 1998); Tobey v. Extel/JWP, Inc. , 985 F.2d 330, 332 (7th Cir. 1993); Henry v. Gill Indus., Inc. , 983 F.2d 943, 950 (9th Cir. 1993) (holding local rule authorizing summary judgment as sanction for failure to respond , without regard to merits, impermissibly violated Fed. R. Civ. P. 56); Anchorage Assocs. v. Virgin Islands Bd. of Tax Review , 922 F.2d 168, 175-76 (3d Cir. 1990); Jaroma v. Massey , 873 (continued...) -4- v. Archambo , 132 F.3d 609, 610-11 & n.2 (10th Cir. 1998). “[A ] dismissal for violation of the local rule [i]s a severe sanction reserved for the extreme case, and is only appropriate 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). In examining the ruling, we consider three factors: “( 1) the degree of actual prejudice to the defendant; (2) the amount of inter ference with the judicial process; [and] (3) the culpability of the litigant.” Id. “[O]nly when these aggravating factors outweigh[] the judicial system’ s strong predisposition to resolve cases on their merits is outright dismissal with prejudice an appropriate sanction.” Id. We require the district court to set forth an ana lysis of these three factors before dismissing a complaint for failure t o comply with local court rules. See Murray , 132 F.3d at 611; Miller v. Dep’t of Treasury , 934 F.2d 1161, 1162 (10th Cir. 1991). The district court failed to con duct any analysis in this case. We conclude that the district court abused its disc retion by dismissing the case for failure to respond without analyzing the factors. 22 (...continued)

F.2d 17, 19-20 (1st Cir. 1989); Dunlap v. Transamerica Occidental Life Ins. Co. , 858 F.2d 629, 632 (11th Cir. 1988); Hibernia Nat’l Bank v. Administracion Central Sociedad Anonima , 776 F.2d 1277, 1279 (5th Cir. 1985). -5- Mr. Farrell’s federal suit must nevertheless be dismissed. Mr. Farrell’s § 1983 claim for compensatory damages is barred as premature at this stage by Heck v. Humphrey , 512 U.S. 477, 481 (1994) (“habeas corpus is the e xclusive remedy for a state prisoner who challenges the factor duration of his confinement and seeks immediate or speedier release , even though such a claim may come within the literal terms of § 1983”). Whe n judgment for a plaintiff in a § 1983 suit “would necessarily imply the invalidi ty of his conviction or sentence[,] . . . the complaint must be dismissed u nless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at 487. However, even if we disregard the request for comp ensatory damages and construe Mr. Farrell’s pleadings as a petition for habeas corpus, see Brown v. Smith , 828 F.2d 1493, 1495 (10th Cir. 1987) (habeas peti tion is appropriate means by which to restore good-time credits), the petitio n must still be dismissed. It is a prerequisite to habeas relief that the peti tioner has exhausted available judicial remedies in the state court. Coleman v. Thompson , 501 U.S. 722, 731 (1991) (noting longstanding rule that “a s tate prisoner’s federal habeas petition should be dismissed if the prisoner has no t exhausted available state3 Were we to reach the merits on habeas review, on th e record before us it

does not appear that Mr. Farrell’s claim has merit. Due process in prison disciplinary proceedings requires that a prisoner r eceive notice of the charges, a hearing, a written statement of the reasons for the prison’s decision, and “some evidence” in the record to support the conviction. Mitchell v. Maynard , 80 F.3d 1433, 1444 (10th Cir. 1996) (discussing due process requirements for hearings resulting in revocation of good-time credits). Her e, the record evidence shows that all four requirements were met. Even though n o witnesses were called, the letter from Debbie Hensley and the money order she made out to Mr. Farrell at Mr. Hensley’s request presented sufficient evidence from which officials could reasonably infer that Mr. Hensley and Mr. Farrell h ad agreed that Mr. Hensley would pay for Mr. Farrell’s services. Mr. Farrell admitted that he knew Mr. Hensley and discussed helping him, even though he avers that he told Mr. Hensley that he did not charge for his assistance. See R. Doc. 2 at 49. The conviction was based on “some evidence.” Mitchell , 80 F.3d at 1444. Insofar as Mr. Farrell alleged that his due process rights were violated b ecause the Hensleys were not produced as witnesses, we note that Mr. Farrell on two occasions signed forms stating that he did not wish to present witnesses at the hearing. See id. at 53, 55. He would thus be barred from complaining of denial of a right that he waived.

-6- remedies as to any of his claims”); Clayton v. Gibson , 199 F.3d 1162, 1170 (10th Cir. 1999), cert. denied , 121 S. Ct. 100 (2000). In Oklahoma, an inmate asserting a right to speedier release may receive areview of his prison disciplinary proceeding through a state writ of mandamus. See Johnson v. Dep’t of Corr. , 916 P.2d 264, 265 (Okla. Crim. App. 1996) (notingthat a “writ of mandamus is appropriate against prison officials wh en a prisoner’s minimum due process rights [with regard to sentence credits] have been violated”). Therefore, the petition must be dismissed. 3-7-

The judgment of the United States District Court fo r the Eastern District of Oklahoma is REVERSED, and the case is remanded for entry of an order of dismissal. The mandate shall enter forthwith.

Entered for the Court

Stephen H. Anderson Circuit Judge