                                                                            FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                      February 3, 2011
                      UNITED STATES COURT OF APPEALS
                                                                     Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                       Clerk of Court




    RONALD E. FIELDS,

                Plaintiff-Appellant,
                                                           No. 10-1287
    v.                                        (D.C. No. 1:08-CV-01704-PAB-MJW)
                                                            (D. Colo.)
    WALGREENS COMPANY,
    a/k/a Walgreens Co.,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before MATHESON, ANDERSON, and TACHA, Circuit Judges.



         Ronald E. Fields, proceeding pro se here as in the district court, appeals the

district court’s dismissal with prejudice of his Title VII

employment-discrimination case for failure to follow court orders and rules and

for failure to prosecute. He also appeals the district court’s discovery orders and



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
its grant of partial summary judgment in favor of defendant. We take jurisdiction

under 28 U.S.C. § 1291 and affirm.

                                     Background

        Plaintiff filed this case on August 12, 2008, alleging that Walgreens Co.,

his former employer, had discriminated against him in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. In due course, a

jury trial was scheduled to commence on June 7, 2010. The district court set

various trial-preparation deadlines during May of 2010, but Mr. Fields did not

comply. The court scheduled a hearing on pending motions for June 3, 2010. At

the hearing, Mr. Fields admitted that he had not prepared and filed a witness list,

an exhibit list, or proposed jury instructions, and offered no reason for his failure

to comply with the court orders to file them. The court then ordered him to show

cause by noon the next day why his case should not be dismissed pursuant to

Fed. R. Civ. P. 41(b) for failure to prosecute and failure to obey court orders.

Intending to proceed with the motions hearing, the court directed Mr. Fields to sit

down, but instead, Mr. Fields left the courtroom, stating that he was going back to

work.

        After considering Mr. Fields’ response to the show-cause order, the district

court dismissed his case with prejudice, pursuant to Rule 41(b). 1 The court


1
       The district court also considered holding Mr. Fields in contempt of court
for leaving the hearing before it had concluded, but declined to do so.

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specifically addressed the list of factors for evaluating a dismissal with prejudice

for a party’s failure to comply with court rules and orders and for failure to attend

pretrial conferences, and found that they weighed in favor of dismissal with

prejudice. 2

       On appeal, Mr. Fields alleges generally that the district court’s rulings were

unfair and unjust, and were entered without giving him a chance to be heard and

present evidence. He contends: (1) the summary judgment motion was violative

of the discovery rules and was supported by an untruthful affidavit, (2) defense

counsel tampered with evidence, (3) the district court improperly resolved

disputed facts in granting partial summary judgment, (4) he was denied various

hearings he requested, (5) his challenges to Walgreens’ proffered evidence were

improperly denied, (6) defense counsel harassed him, (7) his motion to compel

was improperly denied, and (8) the magistrate judge was biased against him and

denied his motion to recuse.

                                      Analysis

       “The Federal Rules of Civil Procedure authorize sanctions, including

dismissal, for failing to appear at a pretrial or scheduling conference, see

2
       The non-exhaustive list of factors is: “(1) the degree of actual prejudice to
the other party; (2) the amount of interference with the judicial process; (3) the
litigant’s culpability; (4) whether the court warned the party in advance that
dismissal would be a likely sanction for noncompliance; and (5) the efficacy of
lesser sanctions.” Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d
1135, 1143-44 (10th Cir. 2007) (citing Ehrenhaus v. Reynolds, 965 F.2d 916, 921
(10th Cir. 1992)).

                                          -3-
Fed. R. Civ. P. 16(f) and 37(b)(2)(C), and for failing to comply with court rules

or any order of the court, see Fed. R. Civ. P. 41(b).” Gripe v. City of Enid,

312 F.3d 1184, 1188 (10th Cir. 2002); accord Nasious v. Two Unknown B.I.C.E.

Agents, 492 F.3d 1158, 1161 (10th Cir. 2007) (“Rule 41(b) specifically authorizes

a district court to dismiss an action for failing to comply with any aspect of the

Federal Rules of Civil Procedure.”). “We review dismissals under Rule 41(b) for

abuse of discretion.” Nasious, 492 F.3d at 1161. “An abuse of discretion occurs

when a district court makes a clear error of judgment or exceeds the bounds of

permissible choice in the circumstances.” Ecclesiastes 9:10-11-12, Inc. v. LMC

Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007) (alteration omitted) (internal

quotation marks omitted). Employing this “deferential standard,” id., we affirm

the district court’s order of dismissal with prejudice.

      We have reviewed the dismissal order, despite the cursory treatment given it

in Mr. Fields’ appellate brief. Construing his pro se filings liberally, see Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), we consider his claim that the

district court failed to render a fair and just ruling without giving him a chance to

be heard and present evidence. 3 We find no abuse of discretion in the district

court’s application of the relevant factors to the circumstances of this case or in its

ultimate determination that dismissal with prejudice was appropriate. We take this

3
       We construe Mr. Fields’ appellate brief liberally to apply this argument to
the dismissal order, although virtually all of his brief concerns the partial
summary judgment order and the discovery disputes.

                                          -4-
opportunity to again remind litigants that they must behave in a manner “that

displays a basic understanding of and respect for the courts and the rule of law in

this nation.” Kyler v. Everson, 442 F.3d 1251, 1254 (10th Cir. 2006).

      Turning to Mr. Fields’ claims of error in the grant of partial summary

judgment and the discovery proceedings, we decline to address these claims,

including his contention of error in the magistrate judge’s decision not to recuse,

because they attempt to appeal interlocutory orders. See AdvantEdge Bus. Grp. v.

Thomas E. Mestmaker & Assoc., Inc., 552 F.3d 1233, 1237 (10th Cir. 2009)

(announcing a “prudential rule allowing the appellate court to review an

interlocutory order preceding a dismissal for failure to prosecute in that rare case

when it makes sense to do so.”). We find no reason in the briefs or the record to

allow appellate review of these matters.

      As a consequence, [Mr. Fields] is the unexceptional plaintiff to whom
      the following homily should apply:

             If a litigant could refuse to proceed whenever a trial
             judge ruled against him, wait for the court to enter a
             dismissal for failure to prosecute, and then obtain review
             of the judge’s interlocutory decision, the policy against
             piecemeal litigation and review would be severely
             weakened. This procedural technique would in effect
             provide a means to avoid the finality rule embodied in
             28 [U.S.C.] § 1291. To review the [interlocutory order]
             is to invite the inundation of appellate dockets with
             requests for review of interlocutory orders and to
             undermine the ability of trial judges to achieve the
             orderly and expeditious disposition of cases.




                                           -5-
Id. (quoting Marshall v. Sielaff, 492 F.2d 917, 919 (3d Cir. 1974)).

      Finally, as to Mr. Fields’ claims that defense counsel tampered with

evidence and harassed him, he has neither identified where in the record he raised

these claims to the district court nor challenged Walgreens’ assertion that he did

not. “Absent extraordinary circumstances, we will not consider arguments raised

for the first time on appeal.” Curtis v. Chester, 626 F.3d 540, 548 (10th Cir.

2010) (quotation omitted). Therefore, we do not address these claims.

                                     Conclusion

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Circuit Judge




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