                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 22 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MICHAEL EUGENE ASHBY,

                Plaintiff-Appellant,

    v.                                                   No. 03-1464
                                                 (D.C. No. 99-MK-1227 (OES))
    MARK MCKENNA; RANDY TATE;                              (D. Colo.)
    CROWLEY COUNTY
    CORRECTIONAL FACILITY;
    CROWLEY CORRECTIONAL
    SERVICE LIMITED LIABILITY
    COMPANY; CORRECTIONAL
    SERVICES CORPORATION,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before KELLY , HARTZ , and TYMKOVICH , 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      This order and judgment is not binding precedent, except under the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.
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.

       Plaintiff Michael Ashby appeals from a district court order dismissing this

action as a sanction for discovery abuse pursuant to Fed. R. Civ. P. 37(a)(2)(B).

We review solely for abuse of discretion,     Ashby v. McKenna , 331 F.3d 1148, 1149

(10 th Cir. 2003), and, finding none, affirm for the reasons stated below.     1



       As the cite for our standard of review shows, this case has been here

before. On the last appeal, another panel of this court vacated a prior order of

dismissal under Rule 37(a)(2)(B), because one of the two grounds relied on by the

district court for imposing the sanction was legally erroneous.        Id. at 1150-51.

The panel was careful to point out, however, that the other ground cited by the

district court, involving plaintiff’s recalcitrant opposition to proper discovery

efforts, remained a sound basis for sanction and, accordingly, remanded the

matter for the district court to freely reconsider the question of sanctions,

including dismissal, on that ground.     Id. at 1151. On remand, the district court

once again concluded that dismissal was appropriate.




1
       Plaintiff also complained in his opening brief that the district court had
improperly ordered him to pay defendants’ costs. As defendants subsequently
pointed out, and our review of the district court docket sheet confirmed, no order
for costs was ever entered (defendants apparently could have, but did not, seek
costs under Fed. R. Civ. P. 54(d)).

                                            -2-
       Plaintiff’s argument on appeal is largely a misguided attempt to defend his

uncooperative response to defendants’ legitimate discovery requests. Without

engaging in an extended recitation of facts well known to the parties, suffice it to

say that plaintiff unduly hampered reasonable efforts to obtain his medical records

for a time period plainly relevant to his prison civil rights claim for deliberate

indifference. This court already made it clear on plaintiff’s prior appeal that his

conduct in this regard was “properly deemed unjustified” by the district court.

Id. at 1151; see also id. at 1152 (noting that on remand dismissal “may yet be a

permissible exercise of [the district] court’s discretion in response to [plaintiff’s]

unjustifiable resistance to the discovery of his medical records”).

       The only real issue here is whether the district court’s choice of the

sanction of dismissal was a permissible exercise of its discretion. The magistrate

judge and district court explicitly considered all of the controlling factors from

Ehrenhaus v. Reynolds , 965 F.2d 916, 921 (10 th Cir. 1992). We therefore defer

to the result reached unless we have “a definite and firm conviction that the court

below committed a clear error of judgment in the conclusion it reached upon a

weighing of the relevant factors.”   Rains v. Ruplinger (In re Rains)   , 946 F.2d 731,

732 (10 th Cir. 1991) (explaining abuse-of-discretion review in similar setting)

(citation and quotation omitted). We see no such error of judgment here.




                                          -3-
      Plaintiff notes that defendants had obtained some of his medical records

through other means and argues that they were thus not prejudiced by his conduct.

This argument is meritless. The document plaintiff relies on, a letter from the

state department of corrections to defendants’ counsel, explicitly states that

defendants were provided only records “starting the date of the incident (April

99).” R. doc. 50, Ex. C. It was defendants’ reasonable position throughout the

discovery proceedings that they needed medical records for a substantial period

preceding the incident to assess whether medical symptoms that plaintiff claimed

were caused by prison food eaten in April 1999 were actually attributable to a

pre-existing condition. Moreover, it is prudent litigation practice to obtain a

formal release for all relevant records, to confirm that records already in one’s

possession are comprehensive and complete, and resistance to such confirmation

is itself prejudicial. The district court properly rejected plaintiff’s effort to shift

the primary focus of the inquiry onto defendants, and placed warranted emphasis

on “[p]laintiff’s failure to execute appropriate medical releases, [which] by itself,

is a discovery abuse so grave that the ultimate sanction of dismissal is warranted

under the Ehrenhaus factors.” R. doc. 246 at 3 n.1.

      In sum, the district court fully complied with the mandate from our earlier

decision. It limited its consideration of sanctions solely to plaintiff’s unjustified

resistance to defendants’ request for medical records, explicitly assessed all of the


                                           -4-
controlling factors set out in   Ehrenhaus , and “exercise[d] its discretion anew” to

dismiss the case.   Ashby , 331 F.3d at 1151 (quotation omitted).

       The judgment of the district court is AFFIRMED. Appellant’s motion for

recovery of costs and fees and for leave to supplement his pleadings is DENIED.

Appellant’s motion for leave to appeal in forma pauperis is GRANTED, and

appellant is reminded that he remains obligated to continue making partial

payments until the entire fee has been paid.


                                                       Entered for the Court



                                                       Timothy M. Tymkovich
                                                       Circuit Judge




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