                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         FEB 13 2002
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


EARL D. COOPER, JR.,

          Plaintiff-Appellant,

v.

JAMES SAFFLE, Director;
REGINALD HINES, Warden; J.
SANDEFIRD, Assistant Warden;
STEPHEN BURNETT, Captain; SGT.
CURL; CORPORAL MAYHUE; SGT.                             No. 01-7107
WYATT; SGT. COTHERN; LPN.                      (Eastern District of Oklahoma)
McDANIEL; DEBBIE MAHAFFEY,                        (D.C. No. 00-CV-705-S)
Warden; CHARLIE ARNORLD,
Major; CAPTAIN MOORE; C.
WAIDON, Case Manager; GARY
GIBSON, Warden; J. MIKE PRUITT;
TEEL, U.C.M.; SHERRY ALLEN;
THE STATE OF OKLAHOMA;
OKLAHOMA DEPARTMENT OF
CORRECTIONS,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *




      *
       This order and judgment is not binding precedent, except under the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.
Before HENRY, BRISCOE, and MURPHY, Circuit Judges.



      After examining the parties’ briefs and the appellate record, this court 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.

      Appellant Earl D. Cooper, Jr., an Oklahoma state prisoner, filed a

complaint pursuant to 42 U.S.C. § 1983 wherein he alleged numerous violations

of his federal civil rights by Defendants. Defendants filed a Motion to

Dismiss/Motion for Summary Judgment on June 5, 2001. Cooper did not file a

response to Defendants’ motion as required by the local civil rules for the Eastern

District of Oklahoma. See E.D. Okla. Local Civ. R. 7.1(B). Local Rule 7.1(B)

requires a party to respond to a motion within fifteen days and provides that the

failure to respond “constitute[s] a confession of the matters raised by the” motion.

Id. The district court dismissed Cooper’s complaint with prejudice for failure to

follow Local Rule 7.1(B). Cooper brought this appeal. 1


      1
       The district court also denied Cooper’s request to file an amended
complaint because he failed to comply with Local Rule 15.1 which requires leave
of court before incorporating any prior pleading by reference in an amended
complaint. In its minute order, the court directed Cooper to either comply with
the local rule; raise any additional claims in a new § 1983 complaint; or if
appropriate, file a petition for a writ of habeas corpus. Cooper’s appellate brief
contains no argument challenging the court’s ruling and the issue is, therefore,
deemed waived. See Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199,
1205 (10th Cir. 1997) (“Issues not raised in the opening brief are deemed
      This court reviews the dismissal of a complaint under Local Civil Rule

7.1(B) for an abuse of discretion. See Murray v. Archambo, 132 F.3d 609, 610

(10th Cir. 1998); see also E.D. Okla. Local Civ. R. 1.1(F) (“A Judge may waive

any requirement of these Rules when the administration of justice requires

waiver.”). “[A] dismissal for violation of [a] local rule [is] 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). Accordingly, this court requires district courts to

analyze three factors before dismissing a complaint for failure to comply with

local court rules. See Murray, 132 F.3d at 611. 2 The court must consider “(1) the

degree of actual prejudice to the defendant; (2) the amount of interference with

the judicial process; [and] (3) the culpability of the litigant.” Hancock, 857 F.2d

at 1396. The complaint should be dismissed with prejudice “only when these

aggravating factors outweighed the judicial system’s strong predisposition to

resolve cases on their merits.” Id.

      Here, the district court dismissed Cooper’s complaint in a minute order

dated July 3, 2001 that reads as follows, “Minute Order: granting defendants’


abandoned or waived.”).
      2
       While Defendants direct this court to Murray v. Archambo, 132 F.3d 609,
610 (10th Cir. 1998) to support their position that the district court’s dismissal of
Cooper’s complaint is reviewed for an abuse of discretion, their appellate brief
contains no discussion of the three factors analyzed in detail in Murray.

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motion to dismiss or for summary judgment and closing case for plaintiff’s failure

to respond pursuant to Local Rule 7.1(B).” In a written order dated September 6,

2001, 3 the court briefly engaged in the analysis set out in Hancock and Murray.

The court’s analysis, however, was flawed. In particular, the court concluded that

the dismissal of Cooper’s complaint did not prejudice the defendants, but the

proper inquiry is whether Cooper’s failure to comply with the local rule

prejudiced Defendants. Further, the district court also concluded that the

dismissal did not interfere with the judicial process. The court must, instead,

determine whether Cooper’s failure to respond to the motion interfered with the

judicial process. Finally, the district court did not state how the three factors

outweighed the “strong predisposition to resolve cases on their merits.” Id.

      We conclude that the district court’s analysis was both flawed and

insufficient. Consequently, the court abused its discretion when it dismissed

Cooper’s complaint. This court has conducted an independent analysis of the

three factors and cannot discern how either Defendants or the judicial process

were prejudiced by Cooper’s failure to comply with Local Rule 7.1(B) and file a

response to Defendant’s motion. Any prejudice to the court in not having the



      3
       This order disposed of a Motion to Amend Civil Rights Suit filed by
Cooper less than ten days after the district court dismissed his complaint. The
court apparently treated Cooper’s motion as a motion to alter or amend judgment
pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.

                                         -4-
benefit of Cooper’s pro se response before ruling on Defendants’ motion cannot

be said to constitute an “‘intolerable burden on [the] district court’ that would

justify dismissal.”   Meade v. Grubbs, 841 F.2d 1512, 1521 (10th Cir. 1988).

Even assuming that Cooper was completely culpable for his failure to comply

with Local Rule 7.1(B), the applicable factors clearly do not outweigh the strong

predisposition to resolve this case on its merits.   See Hancock , 857 F.2d at 1396;

see also Meade, 841 F.2d at 1521 (“[D]ismissal is usually appropriate only where

a lesser sanction would not serve the interest of justice.” (quotation omitted)).

       This court reverses the order dismissing Cooper’s complaint and      remands

this matter to the district court for further proceedings not inconsistent with this

opinion.

                                           ENTERED FOR THE COURT



                                           Michael R. Murphy
                                           Circuit Judge




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