Hardage v. James

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 10 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
TERRY HARDAGE,
Plaintiff-Appellant,
No. 00-7019
v.
(E. District of Oklahoma)
(D.C. No. 99-CV-614-S)
RUBY JAMES; DEBBIE MANNON;
MARY DOE, #1,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, 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.
*
This order and judgment is not binding precedent, except under the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.
Terry Hardage, appearing pro se, appeals the district court’s dismissal of
Hardage’s 42 U.S.C. § 1983 civil rights complaint for failure to prosecute. The
district court dismissed the complaint after Hardage failed to appear at a status
and scheduling conference in violation of a district court order. In the brief on
appeal, Hardage asserts that rather than appearing at the status conference,
Hardage sent a non-attorney “friend” to the conference to explain that Hardage
could not personally appear at the conference because of a plea in abeyance in
state court which prohibited Hardage from reentering the state of Oklahoma for a
period of two years. Hardage further asserts that because the friend was not an
attorney, the district court would not let her speak in court. On the day of the
scheduling conference, the district court entered a Minute Order simply noting as
follows: “[Said cause is dismissed] for failure of plaintiff to appear and prosecute
at the status & scheduling conference on 12/23/99.” 1
This court reviews a dismissal for failure to prosecute or noncompliance
with court orders for abuse of discretion. See Jones v. Thompson, 996 F.2d 261,
264 (10th Cir. 1993). In so doing, this court recognizes the district court’s
inherent power to dismiss an action with prejudice for inexcusable failure to
prosecute. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-32 (1962). This court
1
Pursuant to Federal Rule of Civil Procedure 41(b), the district court’s
dismissal for failure to prosecute is presumed to be a dismissal with prejudice.
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also recognizes that even though pro se litigants like Hardage are held to a less
stringent standard than a licensed attorney, they must still follow the same rules
of procedure governing other litigants. See Green v. Dorrell, 969 F.2d 915, 917
(10th Cir. 1992). Nevertheless, when a dismissal is with prejudice, the district
court must explain why it imposed the extreme sanction of dismissal. See Bud
Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1439 (10th
Cir.1990).
Upon examination of the entire record on appeal, this court concludes that
the district court’s terse Minute Order is insufficient to justify the “extreme
sanction of dismissal.” See id. Furthermore, there is nothing in the record to
indicate that Hardage’s failure to appear at the status conference was part of a
pattern or practice of obstreperous or recalcitrant conduct. Given the record and
the district court’s complete failure to explain why it dismissed Hardage’s
complaint with prejudice, this court concludes that it is impossible to
meaningfully review the district court order.
The dissent asserts that our remand to the district court is simply a “‘make
work’ exercise requiring the trial court judge to further document what is
obvious.” Dissenting Op. at 2. In so asserting, the dissent misapprehends both
the majority opinion and the record. The record establishes the following.
Hardage filed his pro se civil rights complaint on November 16, 1999. On
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December 2, 1999, the district court entered an order setting the case for a status
and scheduling conference for December 23, 1999. Hardage did not appear at the
conference in violation of the district court order. That same day, the district
court dismissed Hardage’s complaint with prejudice in a simple one-line minute
order. At that point, the only information upon which the district court could
have based its dismissal is Hardage’s pro se status and his failure to appear at the
conference. Neither of those facts, considered either separately or in concert, is
enough for this court to affirm a bare-bones, minute-order dismissal with
prejudice. 2 Although Hardage’s failure to appear at the status conference
certainly reflects on his culpability, nothing in the record bears on how this single
failure might have prejudiced the defendants or the meaningful impact, if any, on
the judicial process itself. See Murray v. Archambo, 132 F.3d 609, 610-11 (10th
Cir. 1998) (holding that a consideration of all three factors is necessary to
determine whether the district court abused its discretion in dismissing a case
with prejudice). Only when these aggravating factors outweigh the judicial
systems’ strong predisposition to resolve cases on their merit is an outright
dismissal with prejudice an appropriate sanction. See Miller v. Department of
Treasury, 934 F.2d 1161, 1162 (10th Cir. 1991). The appropriate course in this
2
Although this court is able to surmise from Hardage’s appellate filings the
reason that he failed to attend the status conference, there is nothing in the record
to indicate the district court was aware of the reason.
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particular case was for the district court to issue a show cause order directing
Hardage to account for his failure to appear and then, after balancing, on the
record, Hardage’s response against the factors set out in Archambo, determine
whether dismissal with prejudice was the appropriate sanction.
Nor do Hardage’s appellate filings provide a sufficient basis for this court
to affirm the district court’s summary dismissal. Those filings simply indicate the
reason he was unable to attend the hearing and his attempts, albeit improperly
conceived, to inform the district court of those reasons. There is no indication
that he is unwilling to hire an attorney if that is the only appropriate alternative,
under the particular facts of this case, to dismissal. In conclusion, we simply note
that a remand to the district court to properly document and analyze the propriety
of the extreme sanction of dismissal with prejudice is hardly an exercise in
“‘make work.’” Dissenting Op. at 2.
Accordingly, the district court’s order of dismissal is hereby VACATED
and the case is REMANDED to the district court for further proceedings. If,
upon remand, the district court again concludes that dismissal is an appropriate
remedy, it must state specifically why such a sanction is appropriate. See id.ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
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NO. 00-7019 – HARDAGE v. JAMES
BRORBY, Circuit Judge, dissenting
I respectfully dissent for the reason I find the explanation for the district
court’s dismissal of Mr. Hardage’s complaint with prejudice to be self-evident
and the record adequate for meaningful review.
Attorneys and litigants have an obligation to proceed in good faith toward
resolution of a case. By Mr. Hardage’s own admission and actions, he is
unwilling to fulfill that obligation. First, Mr. Hardage filed his § 1983 action pro
se and now explains in his brief he is prohibited from reentering the State of
Oklahoma for a period of two years because of a plea in abeyance in state court. 1
He makes no mention of any intent to return or in the alternative, to retain counsel
to represent him in his absence. Exactly how does he intend to prosecute his
case?
Second, after being ordered to appear at the status and scheduling
conference, Mr. Hardage filed no motion and made no effort to communicate with
the court on his own behalf. He simply sent a friend, a non-attorney, to explain
his dilemma. There was no showing the friend was in any way authorized to
speak for Mr. Hardage, nor could she be. See Meeker v. Kercher, 782 F.2d 153,
This fact alone would seem adequate grounds for dismissal of his
1
complaint with prejudice.
154 (10th Cir. 1986) (civil party cannot be represented by non-attorney). I posit
the district court was fully justified under the circumstances in disallowing Mr.
Hardage’s friend an opportunity to speak in court.
In sum, I am unwilling to remand this matter to the district court simply as
a “make work” exercise requiring the trial court judge to further document what is
obvious. Any further proceedings or record most certainly would not be worth
the courts’ or the defendant’s time or expense. I see no abuse of discretion and
would not interfere with the district court’s inherent power to control its docket in
a reasonable manner. I would affirm the district court’s dismissal.
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