F I L E D

United States Court of Appeals

Tenth Circuit

JAN 2 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CURTIS L. MURRAY, JR.,

Plaintiff-Appellant,

v.

CURT ARCHAMBO, individually;

CURT ARCHAMBO, as Cherokee

County Acting Sheriff; KEVIN

McFARLAND; KEVIN McFARLIN;

TERRY JOE COMBS; CLINT

JOHNSON, individually; CLINT

JOHNSON, as Deputy Sheriff for

Cherokee County, Oklahoma;

UNKNOWN SURETY COMPANIES

WHICH BONDED THE CHEROKEE

COUNTY SHERIFF AND HIS

DEPUTIES; CHEROKEE NATION

MARSHAL SERVICE,

Defendants-Appellees.

No. 97-7028

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. 96-CV-568)

Submitted on the briefs:

Curtis L. Murray, Jr., pro se.
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Jason C. Wagner and Donna L. Compton of Collins, Zorn, Jones & Wagner, P.C.,

Oklahoma City, Oklahoma, for Defendants-Appellees Curt Archambo,

individually and as Cherokee County Acting Sheriff, Kevin McFarland, Terry Joe

Combs, Clint Johnson, individually and as Deputy Sheriff of Cherokee County,

Oklahoma.

A. Diane Blalock, Tribal Prosecutor, Tahlequah, Oklahoma, for Cherokee Nation

Marshal Service.

Before BALDOCK, BARRETT, and MURPHY, Circuit Judges.

BARRETT, Senior Circuit Judge.

Curtis L. Murray appeals from the district court’s minute order granting

two separate motions to dismiss in favor of defendants, and closing the case. On

October 31, 1996, Murray filed suit against defendants, alleging constitutional

violations based on 42 U.S.C. § 1983. After some confusion with regard to a

scheduling conference, the four individually named defendants (hereinafter

Individual Defendants) responded to the complaint on December 10, 1996. On

January 7, 1997, Murray filed an amended complaint. That same day, the parties

attended a scheduling conference, wherein the Cherokee Nation Marshal Service

requested and received a fifteen-day extension to file a responsive pleading. Two

weeks later, the Individual Defendants filed a motion to dismiss Murray’s

amended complaint because he had not sought leave of court or secured the

consent of defendants before filing it. The next day, January 22, 1997, the
1 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

case is therefore ordered submitted without oral argument.

2

In Miller, this court concluded that the abuse of discretion standard

was applicable to its review of the district court’s grant of summary judgment

under Northern District of Oklahoma Local Rule 15(A), where the plaintiff failed

to respond to the government’s summary judgment motion and the court deemed

the motion confessed. 934 F.2d at 1162. There, as in this case, the local rule

providing for confession of a motion is written in mandatory language, appearing

to require the judge to automatically deem confessed any motion to which a

timely response is not received. There, however--and also as in this case--the

local rules allow a judge to waive any requirement of the rules in the interests of

the administration of justice. Id. The Eastern District of Oklahoma has a similar

rule, Local Rule 1.1(F). Pursuant to the analysis in Miller, we conclude that the

abuse of discretion standard also applies to dismissals under Eastern District of

Oklahoma Local Rule 7.1(B). 

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Marshal Service filed a motion to dismiss the case against it for failure to state a

claim. Sixteen days later, the district court entered a minute order granting the

two motions to dismiss, ruling that the motions were deemed confessed due to 

Murray’s failure to answer the motions within fifteen days as required by local

rule. Murray’s responses to the motions were received by the district court on the

same day as the court’s ruling, February 7, 1997. This appeal followed.1 

We review the district court’s ruling in this case for abuse of discretion. 

See Miller v. Department of Treasury, 934 F.2d 1161, 1162 (10th Cir. 1991)

(discussing standard of review applicable to dismissal for failure to comply with a

similar local rule);2 Hancock v. City of Okla. City, 857 F.2d 1394, 1395-96 (10th

Cir. 1988) (same). Our jurisdiction over this appeal arises from 28 U.S.C.
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§ 1291. Because we agree with Murray that the district court’s ruling was in

error, we reverse and remand for further proceedings in the case. 

On appeal, Murray puts forward several arguments challenging the district

court’s ruling. He contends that his responses to defendants’ motions to dismiss

were timely mailed, arguing that three days should be added to the fifteen day

period under Fed. R. Civ. P. 6(e). We reject this argument because it is clear that

the local rule requiring a response within fifteen days includes the three-day

mailing allowance provided for in Fed. R. Civ. P. 6(e). See Eastern District of

Oklahoma Local Rule 7.1(B). Murray also argues that the Marshal Service never

answered his complaint; however, Fed. R. Civ. P. 12(b) states that motions to

dismiss for failure to state a claim “shall be made before pleading.” Murray

contends that the district court was biased against him as a pro se plaintiff, but

supports this contention only with speculative conclusions. These arguments lack

merit. 

Murray asserts that the district court should not have dismissed his case

against the Marshal Service based on the standards of Fed. R. Civ. P. 12(b)(6). 

This argument miscomprehends the basis of the district court’s ruling, which was

not the merits of the Marshal Service’s motion, but application of the local rule,

under which the district court deemed the motion confessed. Nonetheless, when

we examine the district court’s ruling for an abuse of discretion under these
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circumstances, we consider three factors: “(1) the degree of actual prejudice to

the defendant[s]; (2) the amount of interference with the judicial process; [and]

(3) the culpability of the litigant.” Hancock, 857 F.2d at 1396. “[O]nly when

these aggravating factors outweighed the judicial system’s strong predisposition

to resolve cases on their merits is outright dismissal with prejudice an appropriate

sanction.” Miller, 934 F.2d at 1162 (further quotation omitted). Considering

these factors, we conclude that the district court’s ruling should be reversed. 

First, the court apparently did not consider the above factors before entering its

minute order granting the motions, see id. Second, in light of the procedural

history of this case, these factors could not have outweighed the “strong

predisposition to resolve cases on their merits” in this instance. Murray’s

response to the motions was received one day after the fifteen-day response

period set by the local rule in question. No prejudice to defendants could have

resulted from this delay, nor could it have caused interference with the judicial

process. Also, the record indicates that Murray mailed his responses on February

2, 1997, demonstrating little or no culpability on his part in causing the delay. 

We conclude that the district court abused its discretion in granting the motions to

dismiss under these circumstances. Cf. Hancock, 857 F.2d at 1395-96 (where

plaintiff’s counsel overlooked motion and therefore failed to respond, resulting in

delay of almost two weeks, but, once discovered, responded promptly, court
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abused its discretion in denying plaintiff’s motion for reconsideration following

dismissal of case based on similar local rule). 

Finally, as to the Individual Defendants’ motion to dismiss, Murray

contends that, even if the district court were correct in granting the motion as

confessed under the local rules, his original complaint in the case stands and the

district court erred in dismissing the entire case. We agree. Although it is

apparent that the district court intended to dismiss the entire action, the Individual

Defendants’ motion provided no basis for that portion of the district court’s

ruling. Cf. Thompson v. Dereta, 709 F.2d 1343, 1344 (10th Cir. 1983) (“It is well

settled that dismissal of a complaint is not an appealable order unless, in a

practical sense, the district court dismisses the action as well.”) (citation omitted). 

The Individual Defendants’ motion to dismiss was aimed solely at Murray’s

amended complaint, and was based solely on his failure to seek leave of court or

the consent of defendants before filing it. Their contention, on appeal, that the

motion was “in essence a Motion to Dismiss Plaintiff’s action,” Individual

Defendants’ Br. at 5, misrepresents the record. 

The Individual Defendants argue that Murray’s amended complaint stands

in place of his original complaint and therefore, the court’s dismissal properly

resulted in a dismissal of the entire case. Generally speaking, an amendment that

has been filed or served without leave of court or consent of the defendants is
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without legal effect. See Hoover v. Blue Cross & Blue Shield, 855 F.2d 1538,

1544 (11th Cir. 1988); 6 Charles Alan Wright et al., Federal Practice & Procedure

§ 1484, at 601 (2d Ed. 1990). It follows, then, that only an amended complaint

that is in effect--that is, properly filed pursuant to the requirements of Rule 15--

can supersede the original. Cf. King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994)

(properly filed amended complaint superseded original and was therefore the only

effective complaint in the case). Because Murray’s amended complaint was not

properly filed pursuant to Rule 15, it had no legal effect and did not supersede his

original complaint. 

The Individual Defendants also argue that the district court could

involuntarily dismiss Murray’s entire case for failure to comply with federal court

rules, pursuant to Fed. R. Civ. P. 41(b). Individual Defendants’ Br. at 5. This is

a true statement, see generally, Mobley v. McCormick, 40 F.3d 337, 340 (10th

Cir. 1994) (discussing dismissal as sanction on various grounds), but inapposite

here. The district court did not dismiss the case as a sanction for Murray’s failure

to follow federal procedural rules. Its minute order clearly deemed defendants’

motions confessed under local Rule 7.1(B) and granted the motions to dismiss on

that basis alone. We conclude that the district court’s action in closing the entire

case went beyond the court’s ruling on the motions to dismiss and therefore also

constituted an abuse of its discretion. 
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On remand, the district court should consider defendants’ motions to

dismiss, and Murray’s responses thereto, on their merits. Further, the court

should consider granting Murray leave to amend his complaint. Fed. R. Civ. P. 15

provides that leave to amend “shall be freely given.” This is especially true here

because Murray is proceeding pro se. See Haines v. Kerner, 404 U.S. 519,

520-21 (1972) (pro se pleadings should be liberally construed); Reynoldson v.

Shillinger, 907 F.2d 124, 125-26 (10th Cir.1990) (district court should not dismiss

a pro se complaint without leave to amend if the defects can be cured by

amendment). 

The judgment of the United States District Court for the Eastern District of

Oklahoma is REVERSED and REMANDED for further proceedings consistent

with this opinion. The Individual Defendants’ Motion to Strike Plaintiff’s brief

on appeal is DENIED.