                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS          June 25, 2004
                      FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                                                                Clerk

                            No. 03-10723
                          c/w No. 03-10842
                          Summary Calendar


LARRY LEE BUTLER,

                                    Plaintiff-Appellant,

versus

R. CLOUD, Etc.; ET AL.,

                                    Defendants,

R. CLOUD, ID #3221, Fort Worth Police Department,

                                    Defendant-Appellee.

            -----------------------------------------

LARRY LEE BUTLER,

                                    Plaintiff-Appellant,

versus

R. CLOUD, Etc.; ET AL.,

                                    Defendants,

NFN MARTINEZ, ID #3156, Fort

                                    Defendant-Appellant.

                       --------------------
          Appeals from the United States District Court
                for the Northern District of Texas
                     USDC No. 4:02-CV-00756-A
                       --------------------
                      No. 03-10723 c/w 03-10842
                                 -2-


Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     In appeal no. 03-10723, Larry Lee Butler, Texas prisoner

#1116378, appeals from the dismissal of claims against defendant

R. Cloud with prejudice for failure to comply with discovery

obligations, pursuant to FED. R. CIV. P. 37.   In appeal no. 03-

10842, Butler appeals from the grant of judgment as a matter of

law for defendant Martinez, pursuant to FED. R. CIV. P. 52.

Butler’s two appeals are hereby CONSOLIDATED.

     We construe Butler’s brief in appeal no. 03-10723 as raising

for appeal whether the district court erred by dismissing his

claims against Cloud with prejudice; whether the district court

erred by deeming admitted the material in Cloud’s requests for

admissions; and whether the district court erred by denying his

motion for medical records.   Butler has merely listed his

remaining issues in appeal no. 03-10723.   He has failed to brief

any of those issues for appeal, and we do not consider those

issues.   Brinkmann v. Dallas County Deputy Sheriff Abner, 813

F.2d 744, 748 (5th Cir. 1987).

     We review dismissal under FED. R. CIV. P. 37 for abuse of

discretion.    National Hockey League v. Metropolitan Hockey Club,

Inc., 427 U.S. 639, 640, 96 S. Ct. 2778, 2779, 49 L. Ed. 2d 747


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                     No. 03-10723 c/w 03-10842
                                -3-

(1979); Batson v. Neal Spelce Assocs., 765 F.2d 511, 514 (5th

Cir. 1985).   “Rule 37 empowers the district court to compel

compliance with Federal discovery procedures through a broad

choice of remedies and penalties, including dismissal with

prejudice.”   Griffin v. Aluminum Co. of America, 564 F.2d 1171,

1172 (5th Cir. 1977).   Where the district court dismisses an

action with prejudice under Rule 37(b)(2)©), the dismissal will

be upheld only “when the failure to comply with the court’s order

results from wilfulness or bad faith, and not from an inability

to comply,” Batson, 765 F.2d at 514.   Other considerations

include “whether the other party’s preparation for trial was

substantially prejudiced,” whether the improper behavior is

attributable to the attorney rather than the client, and whether

“a party’s simple negligence is grounded in confusion or sincere

misunderstanding of the court’s orders.”    Id.   A dismissal with

prejudice under Rule 37 is a “remedy of last resort” which should

be applied only in extreme circumstances.    Id. at 515.   As a

result, our review centers on whether the district court could

have substantially achieved the deterrent value of Rule 37 by

imposing an equally effective but less drastic sanction.      Id. at

514; Griffin, 564 F.2d at 1172.

     Butler was given ample warning that his failure to

participate in discovery or comply with court orders could result

in the dismissal of his claims.   Butler did not respond to

interrogatories. Instead, he advised that he refused to answer
                     No. 03-10723 c/w 03-10842
                                -4-

and would invoke the Fifth Amendment.    The district court then

ordered him to fully comply and answer. Butler did not comply.

The examples Cloud provided to the district court of Butler’s

responses to Cloud’s interrogatories and requests for production

of documents evidence that Butler made what amounted to a

meaningless effort to fully comply with the district court’s June

5, 2003, order as to the particular questions and requests

contained in those samples.    We refuse to remand this case to

give Butler another opportunity to thwart the district court’s

order.   We conclude based upon the record now before us that

dismissal with prejudice was appropriate.

     Butler has shown no error regarding the district court’s

decision to deem admitted the statements contained in Cloud’s

request for admissions.     The district court need not have first

ordered Butler to comply with Cloud’s request.     See McLeod,

Alexander, Powel & Apffel v. Quarles, 894 F.2d 1482, 1485 (5th

Cir. 1990).   Nor has Butler shown that the district court abused

its discretion by denying his request for medical records.       See

Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1007, 1012 (5th Cir.

1986).

     Butler has merely listed his appellate issues in appeal no.

03-10842.   He has not briefed those issues sufficiently to have

them considered by this court.     See Brinkmann, 813 F.2d at 748.

The district court’s judgment in each appeal is AFFIRMED.

     APPEAL NO. 03-10723:    AFFIRMED.

     APPEAL NO. 03-10842:    AFFIRMED.
