                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        February 7, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                          Clerk of Court

 GREGORY COOKS,
               Plaintiff - Appellant,                   No. 05-1113
          v.                                  (D.C. No. 03-MK-1185 (PAC))
 CARGILL, INC.,                                          (D. Colo.)
               Defendant - Appellee.


                            ORDER AND JUDGMENT *


Before HENRY, McKAY, and EBEL, Circuit Judges.




      After examining the briefs and the 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.

      Appellant filed this action in state court claiming employment

discrimination based on race and disability. Appellee removed the action to

federal court. On February 7, 2005, the district court dismissed Appellant’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       This order and judgment is not binding precedent, except under the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.
claims for lack of prosecution. In its order of dismissal, the court explained, inter

alia, that Appellant had failed to comply with the court’s rules throughout the

entire course of the case, that he had failed to comply with explicit court orders,

and that he had failed to appear at the pretrial conference. Appellant appeals this

dismissal. We will review for abuse of discretion the district court’s dismissal

order under Rule 41(b) of the Federal Rules of Civil Procedure. Gripe v. City of

Enid, 312 F.3d 1184, 1188 (10th Cir. 2002).

      Upon removal to federal court, the magistrate judge held a hearing pursuant

to Federal Rule of Civil Procedure 16, where she set a deadline for submission of

a proposed scheduling order, a deadline for initial disclosures, and a final pretrial

conference. Appellant missed these deadlines, and Appellee filed a motion for

sanctions based on Appellant’s failure to provide disclosures and prepare a

proposed scheduling order. The magistrate judge issued an Order to Show Cause

(“the First Order to Show Cause”) directing the parties to show cause why they

should not be held in contempt for failing to submit a proposed scheduling order.

The magistrate judge subsequently scheduled a hearing on Appellee’s motion for

sanctions.

      Appellant filed written responses to the First Order to Show Cause and to

the motion for sanctions. He explained that he did not understand the judicial

process or what was expected of him. He also stated that he had retained a law


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firm in connection with his discrimination claims and that the law firm would

move to dismiss his pro se claims.

       Following a hearing, the magistrate judge vacated the First Order to Show

Cause and denied the motion for sanctions. The magistrate judge then set new

deadlines for the submission of a proposed scheduling order and the completion

of initial disclosures. The minutes from that hearing state:

       Court is giving plaintiff one final chance. If the plaintiff fails to follow the
       orders of this court, the Federal Rules of Civil Procedure, and the Local
       Rules of this court, it will be recommended to the district judge that his
       case be dismissed with prejudice and the plaintiff or his daughter be held in
       contempt.

Order Dismissing Claims for Lack of Prosecution, 2 (Feb. 7, 2005, D. Colo.).

      Appellant later failed to produce records pertaining to his Social Security

Disability Insurance benefits, as was requested in a motion to compel. Appellee

filed a motion for sanctions based upon Appellant’s failure to release these records.

The magistrate judge set a hearing on the motion for sanctions, at which Appellant

stated that he did not receive a release from Appellee to execute the release of the

records. A new release was provided to Appellant at the hearing, which he signed.

Appellant’s daughter advised the court that Appellant would not have a residence

after the day of the hearing. The magistrate judge informed Appellant that under

Local Rule 10.1(M), he was required to notify the court of his change of address

within ten days.


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      Appellee later filed a motion seeking an extension of time to file dispositive

motions, stating that Appellant’s telephone had been disconnected and that attempts

to personally serve Appellant with a letter had been unsuccessful. Based thereon,

the court issued an order directing Appellant to show cause why his claims should

not be dismissed (“the Second Order to Show Cause”).

      Appellant subsequently filed a notice informing the court of his new mailing

address, a post office box. He also informed the court that he did not have a

telephone number where he could be reached. He responded to the Second Order to

Show Cause, stating that it was not his intention to violate the Local Rules. The

court therefore discharged the Second Order to Show Cause.

      Next, Appellant failed to appear at the pretrial conference and failed to

participate in preparing the proposed final pretrial order. The magistrate judge

issued an Order to Show Cause (“the Third Order to Show Cause”) directing

Appellant to show cause why his claims should not be dismissed for failure to

prosecute.

      Appellant responded in writing to the Third Order to Show Cause. He states

that he “was out of town for a brief period of time on a family emergency and

during this time no one was able to receive, pick up or check the mail box.” Order

Dismissing Claims for Lack of Prosecution, 4 (Feb. 7, 2005, D. Colo.). He

explained that he did not know about the final pretrial conference but offered no


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explanation for his failure to participate in preparing the proposed final pretrial

order.

         The local rules of the District Court of Colorado state:

               A judicial officer may issue an order to show cause why a case should
               not be dismissed for lack of prosecution or for failure to comply with
               these rules, the Federal Rules of Civil Procedure, or any court order.
               If good cause is not shown within the time set in the show cause order,
               a district judge or a magistrate judge exercising consent jurisdiction
               may enter an order of dismissal with or without prejudice.

D. Colo R. 41.1. Appellant has not established good cause for his failure to appear

at the final pretrial conference. Throughout the entire course of his case, Appellant

has failed to comply with the local rules of the court and failed to comply with

explicit court orders, leading to the issuance of three orders to show cause.

         We have carefully reviewed Appellant’s brief, the district court’s disposition,

and the record on appeal. We are in accord with the district court’s dismissal for

substantially the same reasons set forth by the district court in its Order of

February 7, 2005.

         We AFFIRM the district court’s dismissal with prejudice of Appellant’s

complaint.

                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge


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