                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             AUG 18 2000
                                 TENTH CIRCUIT
                            __________________________                   PATRICK FISHER
                                                                                  Clerk

 RICHARD ROBINSON,

          Plaintiff-Appellant,

 v.                                                            No. 00-7010
                                                                (E.D. Okla.)
 MIKE ADDISON; BARBARA LEWIS; JIM                        (D.Ct. No. 99-CV-358-S)
 SAFFEL; DR. LOWE; BRIAN BARNES;
 DOLORES RAMSEY,

          Defendants-Appellees.
                        ____________________________

                             ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and 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.
      Appellant Richard Robinson, a prisoner appearing pro se, appeals the

district court’s decision dismissing his 42 U.S.C. § 1983 complaint for failure to

respond, as required under a local court rule, to the State of Oklahoma’s motions

to dismiss and for summary judgment. We exercise our jurisdiction under 28

U.S.C. § 1291 and reverse and remand for further proceedings consistent with this

decision.



      Shortly after Mr. Robinson filed his § 1983 complaint, the State of

Oklahoma responded with motions to dismiss and for summary judgment. Mr.

Robinson responded by submitting to the clerk of court for filing a “response and

motion for summary judgment.” On December 9, 1999, a deputy clerk “[a]t the

direction of the court,” returned Mr. Robinson’s “response and motion for

summary judgment” as “unfiled” because it apparently contained multiple motions

or requests. The letter stated “[i]f you are requesting action by the court, you

must file Separate Motions, pursuant to Local Rule 7.1.(B).” (Emphasis in

original.) Seven days later, the district court entered a minute order granting the

State’s motions to dismiss and for summary judgment based on Mr. Robinson’s

“failure to respond pursuant to [Eastern District of Oklahoma] Local [Civil] Rule

7.1(B).” The minute order did not indicate whether the district court dismissed

the complaint with or without prejudice.


                                           -2-
      In his appeal, Mr. Robinson complains, in part, that the district court’s

dismissal of his complaint improperly conflicted with its own court rule. Mr.

Robinson’s argument is in reference to Local Civil Rule 7.1(B), which states:

      Each motion, application, or objection filed shall be a separate pleading,
      except where alternative pleading is allowed by law or these Rules.... A
      separate pleading in opposition or response to each motion, application, or
      objection shall be filed within fifteen (15) days, which includes three (3)
      days for mailing allowed by Rule 6(e), Federal Rules of Civil Procedure,
      after the filing of the motion, application, or objection.... Any failure to
      comply with this paragraph will constitute a waiver of any objection by the
      noncomplying party, and the failure to comply will constitute a confession
      of the matters raised by the pleadings.

E.D. Okla. Local Civ. R. 7.1(B).


      We review the district court’s dismissal of a complaint under Local Civil

Rule 7.1(B) for an abuse of discretion, considering the degree of actual prejudice

to the defendant, the amount of interference with the judicial process and the

culpability of the litigant. See Murray v. Archambo, 132 F.3d 609, 610-11, n.2

(10th Cir. 1998). “Only 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.” Id. (quotation marks and

alterations omitted). We have concluded measures other than outright dismissal

of a complaint should be considered even when a non-movant fails to respond.

See Meade v. Grubbs, 841 F.2d 1512, 1520-22 (10th Cir. 1988).



                                         -3-
       Applying our standard of review to the circumstances presented, we hold

the district court abused its discretion in dismissing Mr. Robinson’s complaint for

failure to file a response pleading. The record shows Mr. Robinson did in fact

submit a responsive pleading, which the clerk returned as “unfiled” because it did

not contain separate pleadings for each request contained therein. The clerk’s

statement that “[i]f you are requesting action by the court, you must file Separate

Motions, pursuant to Local Rule 7.1.(B), ” would lead any pro se litigant, like Mr.

Robinson, to conclude he could resubmit his response. However, only seven days

after the clerk sent this document back to Mr. Robinson, the district court

nevertheless dismissed Mr. Robinson’s complaint for “failure to respond pursuant

to Local Rule 7.1(B).”



       Thus, regardless of whether the dismissal was with or without prejudice, we

find the dismissal in this case inappropriate given Mr. Robinson submitted a

response, albeit in an improper form, and most likely believed he could resubmit

another response. Moreover, applying the factors we must consider, no evidence

exists showing the State experienced prejudice from Mr. Robinson’s delay in

resubmitting his response or that the delay interfered with the judicial process. 1


       1
          The State advises us Mr. Robinson did not mail his responsive pleading until
December 3, 1999. Even if Mr. Robinson did not submit his responsive pleading for
filing by the deadline, we find the dismissal inappropriate given the clerk of court, acting

                                             -4-
As to Mr. Robinson’s culpability, we remind the district court he is proceeding

pro se. While pro se litigants are bound to follow rules of procedures, c.f. Meade,

841 F.2d at 1521, the clerk’s letter in this case did not indicate Mr. Robinson’s

response was already untimely or would be untimely if not resubmitted in a

certain number of days. 2 Our holding on Mr. Robinson’s lack of culpability is

strengthened by the fact his only other procedural infraction concerned his failure

to file a “proper Certificate of Service” as required by another local rule. See

Meade, 841 F.2d at 1520. While Mr. Robinson may have been required to

resubmit a responsive pleading in compliance with the local rule on filing

separate pleadings, we hold the district court abused its discretion in dismissing

his pro se complaint for failure to respond only seven days after the clerk notified

Mr. Robinson his responsive pleading did not comply with the rule on filing

separate pleadings and indicated it could be resubmitted.



       For these reasons, the judgment of the United State District Court for the

Eastern District of Oklahoma is REVERSED and REMANDED for further



under the direction of the district court, did not advise Mr. Robinson that his pleading was
untimely, but instead sent it back to him to resubmit.

       2
         On remand, we leave any determination of the sufficiency of the complaint or
the propriety of the State’s motions to the district court.


                                            -5-
proceedings consistent with this opinion.



                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




                                        -6-
