                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         NOV 12 1999
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    CURTIS L. MURRAY, JR.,

               Plaintiff-Appellant,

    v.                                                  No. 99-7006
                                                  (D.C. No. 96-CV-568-S)
    CURT ARCHAMBO, individually;                        (E.D. Okla.)
    CURT ARCHAMBO, as Cherokee
    County Acting Sheriff; KEVIN
    MCFARLAND; TERRY JOE COMBS;
    CLINT JOHNSON, individually;
    CLINT JOHNSON, as Deputy Sheriff
    for Cherokee County, Oklahoma;
    UNKNOWN SURETY COMPANIES,
    which bonded the Cherokee County
    Sheriff and his Deputies; CHEROKEE
    NATION MARSHAL SERVICE,

               Defendants-Appellees.


                           ORDER AND JUDGMENT           *




Before EBEL , LUCERO , and MURPHY , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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.
       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.

       Plaintiff Curtis Murray, appearing pro se, appeals the district court’s

dismissal of his civil rights action against Cherokee County, Oklahoma; the

Cherokee County Sheriff’s Department (the sheriff’s department); individual

officers and employees of the sheriff’s department (the county defendants); surety

companies bonding the sheriff’s department; and the Cherokee Nation Marshal

Service (the marshal service). We affirm.


                                    BACKGROUND

       Mr. Murray filed a complaint alleging that his civil rights were violated

during the course of two different traffic stops and a subsequent arrest.   1
                                                                                The first

of these stops was allegedly conducted on October 1, 1994, by sheriff’s deputies

and a marshal service officer; the second on July 18, 1996, by sheriff’s deputies

only. The district court dismissed the case on December 2, 1996, for

Mr. Murray’s failure to appear at a status and scheduling conference, but



1
       In addition to a civil rights claim pursuant to 42 U.S.C. § 1983, Mr. Murray
alleged false arrest, false imprisonment, malicious prosecution, negligence, gross
negligence, and civil conspiracy.    See R., Vol. I, doc. 98 at 7-10.

                                             -2-
reinstated it upon a determination that the conference had been reset for a later

date.

         All defendants filed motions to dismiss the complaint. The county

defendants based their motion on Mr. Murray’s failure to seek leave of court

before filing an amended complaint. The marshal service asserted that

Mr. Murray had failed to state a claim upon which relief can be granted, noting

the failure to name a specific officer who allegedly participated in the 1994 stop.

When Mr. Murray did not respond to the dismissal motions within the time

allocated by local rule, the court deemed them confessed and dismissed the entire

action. On appeal, this court reversed and remanded the case to the district court

for further proceedings.   See Murray v. Archambo , 132 F.3d 609, 612 (10th Cir.

1998).

         On remand, the district court entered scheduling orders setting deadlines

for discovery and court filings, including an amended complaint identifying the

marshal service officer who had allegedly conducted the stop. Mr. Murray filed

a First Amended Complaint asserting that two marshal service officers, whom he

“believed to be Brian Blair and Mike Dawes,” had participated in the stop.

R., Vol. I, doc. 98, at 5. He also alleged that he had “an eyewitness [who] will

testify to the fact that the allegations by plaintiff against the officers of Cherokee

National Marshall [sic] Service participated as alleged.”   Id. He failed, however,


                                            -3-
to meet many of the court-imposed deadlines and exhibited a general lack of

cooperation with the discovery efforts of the county defendants. Specifically, he

disregarded a court order compelling production of written discovery responses.

       In an order dated August 28, 1998, the court granted the county defendants’

motion for dismissal, under Fed. R. Civ. P. 37(d), for failure to cooperate in

discovery and intentional disregard of a court order. It also dismissed the

unidentified surety companies which bonded the county defendants. On

December 10, 1998, the court issued another order granting a motion for summary

judgment filed by the marshal service, based on a determination that plaintiff had

failed to come forward with any specific facts showing involvement of any

officers working for the marshal service. Mr. Murray then filed a timely notice

of appeal.   2




2
        The county defendants have filed a motion to dismiss this appeal on the
grounds that Mr. Murray’s January 7, 1999 notice of appeal is untimely as to the
district court’s August 28, 1998 order granting their motion to dismiss. The
motion is not well-taken. The order dismissing the county defendants did not
adjudicate the rights and liabilities of all parties and thus was not an appealable
final order. See Fed. R. Civ. P. 54(b).

                                         -4-
                                       DISCUSSION

A.     Dismissal pursuant to Fed. R. Civ. P. 37(d)

       Mr. Murray contends that the district court erred in dismissing his claims

against the county defendants, pursuant to Fed. R. Civ. P. 37(d).    3
                                                                         “Determination

of the correct sanction for a discovery violation is a fact-specific inquiry that the

district court is best qualified to make.”    Ehrenhaus v. Reynolds , 965 F.2d 916,

920 (10th Cir. 1992). Therefore, we review the district court’s imposition of

sanctions for abuse of discretion, accepting the supporting factual findings unless

clearly erroneous.    See id. at 920, 921. The district court’s discretion is limited

by the requirement that the sanction be both “‘just’” and “‘related to the particular



3
       Fed. R. Civ. P. 37(d) provides, in pertinent part:

       Failure of Party to Attend at Own Deposition or Serve Answers
       to Interrogatories or Respond to Request for Inspection           . If a
       party . . . fails . . . to serve answers or objections to interrogatories
       submitted under Rule 33, after proper service of the
       interrogatories, . . . the court in which the action is pending on
       motion may make such orders in regard to the failure as are just, and
       among others it may take any action authorized under subparagraphs
       (A), (B), and (C) of subdivision (b)(2) of this rule.

       The authorized actions include: (A) an order establishing designated facts
for the purpose of the action; (B) an order prohibiting a party from supporting
or opposing designated claims or defenses or introducing designated matters into
evidence; and (C) an order striking out pleadings, staying further proceedings,
dismissing the action or proceeding, or entering a default judgment.   See
Fed. R. Civ. P. 37(b)(2).

                                             -5-
claim which was at issue.’”      Id. at 920-21 (quoting Insurance Corp. of Ireland,

Ltd. v. Compagnie des Bauxites de Guinee       , 456 U.S. 694, 707 (1982)).

      “[D]ismissal is a severe sanction and is not ordinarily warranted if lesser

sanctions would be effective.”      Jones v. Thompson , 996 F.2d 261, 265 (10th Cir.

1993). Accordingly, the district court has a duty to explain why dismissal was an

appropriate sanction.   See Ehrenhaus , 965 F.2d at 921. Before entering a

dismissal, a district court must ordinarily consider, on the record, several factors

designed to caution against premature or unreflective resort to this drastic

sanction. See Mobley v. McCormick , 40 F.3d 337, 340 (10th Cir. 1994). “These

criteria include: ‘(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. (quoting Ehrenhaus , 965 F.2d at 921).     4



      Here, the district court considered the appropriate criteria    before entering

its order. First, the court found that Mr. Murray’s failure to comply with

discovery requests and the court’s order prejudiced the county defendants, in that


4
       While we construe their pleadings liberally, pro se litigants “must follow
the same rules of procedure that govern other litigants.”  Green v. Dorrell ,
969 F.2d 915, 917 (10th Cir. 1992). “[W]e have repeatedly upheld dismissals
in situations where the parties themselves neglected their cases or refused to
obey court orders.” Id. (citing cases).

                                            -6-
they were forced to make litigation decisions without the relevant information and

to incur additional expenses. Concerning the second factor, “the amount of

interference with the judicial process,” the court found that Mr. Murray’s

behavior stalled the litigation and thwarted defendants’ ability to be adequately

represented. As for the “culpability of the litigant,” Mr. Murray testified that he

failed to produce the discovery responses in spite of a court order simply because

he needed additional time. The court found this to be an intentional and willful

disregard of the court’s order.

       The fourth factor is whether the party was notified that its failure to comply

with court orders might result in dismissal. Mr. Murray was not specifically

warned, but as the district court found, he was undoubtedly aware that the court

could utilize this sanction. Although the orders were later rescinded or reversed,

the court had previously dismissed the case twice.

       Finally, the district court considered but rejected the efficacy of lesser

sanctions. Earlier, the court had extended deadlines and accepted late filings.

When it entered an order compelling production of the written responses,

Mr. Murray failed to comply. The court concluded that no lesser sanction would

serve the interest of justice.   5




5
      We note that the court’s dismissal was directed only to the claims made
against the defendants affected by his lack of cooperation in discovery.

                                          -7-
       We have reviewed the entire record on appeal. Notwithstanding

Mr. Murray’s claim that he acted in good faith, the record supports the district

court’s factual findings and its analysis of the relevant factors. Accordingly, the

district court’s order of dismissal of the county defendants did not amount to an

abuse of discretion.

B.     Entry of summary judgment pursuant to Fed. R. Civ. P. 56

       Mr. Murray also asserts that the district court’s entry of summary judgment

in favor of the marshal service was improper. “We review a decision granting

summary judgment de novo, using the same legal standard applicable in the

district court.”   Jantzen v. Hawkins , 188 F.3d 1247, 1251 (10th Cir. 1999).

       Summary judgment is appropriate if the pleadings, depositions,
       answers to interrogatories, and admissions on file, together with the
       affidavits, if any, show that there is no genuine issue as to any
       material fact and that the moving party is entitled to a judgment as
       a matter of law. In determining whether the evidence presents a
       genuine issue of material fact, we view it in the light most favorable
       to the party against whom summary judgment was entered . . . .

Id. (quotations and citations omitted). However, once the party seeking summary

judgment has supported its motion, the nonmoving party, here Mr. Murray, cannot

rest on mere allegations but must present evidence of specific facts to support his

assertions. See Muck v. United States , 3 F.3d 1378, 1380 (10th Cir. 1993).

       For Mr. Murray to establish the liability of the marshal service, he must,

at a minimum, identify the specific officers of the marshal service who allegedly


                                          -8-
participated in the 1994 stop.   Cf. Foote v. Spiegel , 118 F.3d 1416, 1423

(10th Cir. 1997) (repeating the rule that individual liability “under § 1983 must

be based on personal involvement in the alleged constitutional violation”). In

support of its motion, the marshal service submitted affidavits and documentation

indicating that officers Blair and Dawes worked on different nights and that

no other marshal service officer participated in the 1994 stop. In response,

Mr. Murray asserted that he had identified a witness “to testify to the involvement

of the named officer or officers,” and that the marshal service had “a duty to

investigate the witness and the relevant facts known.” R., Vol. I, doc. 106 at 2.

He also argued that the marshal service’s affiants were “intentionally lying under

oath.” Id. at 3.

       After reviewing the entire record, we agree with the district court that

Mr. Murray failed to come forward with facts showing that an officer of the

marshal service participated in the stop. Therefore, summary judgment was the

appropriate disposition of all claims against the marshal service.




                                           -9-
CONCLUSION




   -10-
      The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED. The motion to dismiss filed by the county defendants

is DENIED. The mandate shall issue forthwith.



                                                   Entered for the Court



                                                   David M. Ebel
                                                   Circuit Judge




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