                                                              F I L E D
                                                        United States Court of Appeals
                                                                Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                             January 26, 2006
                        FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                               Clerk of Court

JOSEPH A. ELLSWORTH,

          Plaintiff-Appellant,

  v.                                            No. 05-7047
                                          (D.C. No. CIV-01-607-S)
GARY GIBSON, Warden O.S.P. in his               (E.D. Okla.)
Official Capacity and in his individual
capacity; DODD, Correctional Officer
O.S.P. in his Official Capacity and in
his individual capacity; PRUITT, Unit
Manager of "I" and "G" Units at
O.S.P. in his Official Capacity and in
his individual capacity; J
STANSIFIRD, O.S.P. Deputy Warden
in his Official Capacity and in his
individual capacity; T LINDSEY, "I"
Unit Case Manager in his Official
Capacity and in his individual
capacity; SPEARS, "I" Unit Case
Manager in his Official Capacity and
in his individual capacity; M RIDDLE,
"I" Unit Case Manager in his Official
Capacity and in his individual
capacity; MORGAN, Night Shift
Correctional Officer in his Official
Capacity and in his individual
capacity; MOODY, Day Shift
Correctional Officer in his Official
Capacity and in his individual
capacity; SHERWOOD, Night Shift
Correctional Officer in his Official
Capacity and in his individual
capacity; SHERRILL, Disciplinary
Hearing Officer in his Official
Capacity and in his individual
    capacity; D WORTHAM,
    Former "I" Unit Case Manager in his
    Official Capacity and in his individual
    capacity; STEWART, O.S.P. Physician
    in his Official Capacity and in his
    individual capacity,

            Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and BRORBY, 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.

         Mr. Ellsworth, an Oklahoma state prisoner proceeding pro se, sued

defendants (officials and employees of the Oklahoma State Penitentiary) under

42 U.S.C. § 1983, alleging various violations of his rights under the United States

Constitution. The district court dismissed the action because of Mr. Ellsworth’s



*
      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.

                                              -2-
failure to comply with both the Federal Rules of Civil Procedure and a court

order. Mr. Ellsworth appeals this decision. We affirm the judgment of the

district court.

       The district court’s ruling of March 24, 2005, details the chronology of

Mr. Ellsworth’s failure to cooperate in discovery and comply with a court order.

Defendants served Mr. Ellsworth with a set of interrogatories on May 13, 2003,

asking him to state his case in his own words. When Mr. Ellsworth did not

respond, defendants mailed two letters to him requesting his responses. Later

defendants filed two motions to compel. On March 17, 2004, the district court

granted the motions to compel and ordered Mr. Ellsworth to produce his

responses by April 19, 2004. Sometime in December of 2004, Mr. Ellsworth

provided unresponsive answers, generally stating that he could not answer

because one of the defendants had destroyed his documentary evidence.

Defendants then filed a motion to dismiss pursuant to Fed. R. Civ. P. 37(b)(2)(C).

       Mr. Ellsworth did not respond to the dismissal motion, but he did file a

response to the court’s show-cause order. He asserted that defendants had made it

difficult to respond to discovery by stealing his evidence and placing him in

solitary confinement on a fabricated charge. The district court granted

defendants’ motion to dismiss.




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      “[W]e review the district court’s decision to dismiss for discovery

violations under an abuse of discretion standard.” Ehrenhaus v. Reynolds,

965 F.2d 916, 920 (10th Cir. 1992). Because “dismissal represents an extreme

sanction appropriate only in cases of willful misconduct,” however, the district

court must ensure that dismissal is a just sanction for the offending party’s

actions. Id. Thus, in addition to considering the culpability of the offending

party, a court should consider:

      (1) the degree of actual prejudice to the defendant; (2) the amount of
      interference with the judicial process; (3) the culpability of the
      litigant; (4) whether the court warned the party in advance that
      dismissal of the action would be a likely sanction for noncompliance;
      and (5) the efficacy of lesser sanctions.

Id. at 921 (quotation and citations omitted). If “a party appears pro se, the court

should carefully assess whether it might appropriately impose some sanction other

than dismissal, so that the party does not unknowingly lose its right of access to

the courts because of a technical violation.” Id. at 920 n.3

      The district court analyzed the actions of Mr. Ellsworth under the five

relevant factors. It determined that: (1) Mr. Ellsworth’s failure to provide

particularized information meant that defendants were unable to proceed with

their defense; (2) his behavior stalled the judicial process; (3) his motives were

questionable; (4) defendants’ motion to dismiss and the court’s show-cause order

provided Mr. Ellsworth with knowledge of the possibility of dismissal; and (5) the


                                          -4-
aggravating factors outweighed the judicial system’s predisposition to resolve a

case on its merits. The court also noted that Mr. Ellsworth’s allegations of

document destruction were of little import. Defendants did not request

documentation from Mr. Ellsworth, they simply asked him to explain the factual

basis of his case. Upon consideration, the court concluded that no lesser sanction

would serve the interest of justice. The court therefore granted defendants’

motion to dismiss.

      On appeal, Mr. Ellsworth narrates his difficulties in litigating from a

disciplinary unit, claims that defendants failed to respond to his own discovery

requests, and asserts that defendants’ motion cannot constitute forewarning of

dismissal. 1 After reviewing the record, we conclude that Mr. Ellsworth’s

arguments have no merit and that the district court was well within its discretion




1
       We note that Mr. Ellsworth failed to attach a copy of the court’s dismissal
order to his opening brief, as required by 10th Cir. R. 28.2(A)(1). We remind
counsel for defendants that if an appellant’s brief omits a required ruling, then
appellees are to include it in their response brief. See 10th Cir. R. 28.2(B).


                                         -5-
in dismissing the action. The judgment of the district court is AFFIRMED.

Mr. Ellsworth is reminded that he must continue to make partial payments until

his filing fee is paid in full.

                                                  Entered for the Court



                                                  Wade Brorby
                                                  Circuit Judge




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