UNITED STATES COURT OF APPEALS
Filed 7/3/96
FOR THE TENTH CIRCUIT
VINCENT A. APODACA,
Plaintiff-Appellant,
v. No. 95-8070
(D.C. No. 95-CV-10)
JUDY UPHOFF, individually and in (D. Wyo.)
her official capacity as Director,
Wyoming Department of Corrections;
ROBERT E. ORTEGA, individually
and in his official capacity as Deputy
Director, Wyoming Department of
Corrections; DUANE SHILLINGER,
individually and in his official
capacity as Warden, State Penitentiary
Wyoming Department of Corrections;
BILL HETTGAR, individually and in
his official capacity State Penitentiary
Medical Administrator, Wyoming
Department of Corrections; JAMES
FERGUSON, individually and in his
official capacity as State Penitentiary
Deputy Warden, Wyoming Department
of Corrections; ARCHIE KIRSCH,
individually and in his official
capacity as State Penitentiary Medical
Doctor, Wyoming Department of
Corrections,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before PORFILIO, BRIGHT, ** and KELLY, 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); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff Vincent A. Apodaca appeals from an order of the district court
dismissing his complaint filed pursuant to 42 U.S.C. § 1983 for failure to
prosecute. We affirm.
The district court may dismiss an action for lack of prosecution if, after
consideration of all the relevant factors, it concludes dismissal is the most
appropriate sanction to satisfy the interests of justice. See, e.g., Ehrenhaus v.
Reynolds, 965 F.2d 916, 920-21 (10th Cir. 1992). “Determination of the correct
sanction . . . is a fact-specific inquiry that the district court is best qualified to
*
This order and judgment is not binding precedent, except under the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.
**
Honorable Myron H. Bright, Senior Circuit Judge, United States Court of
Appeals for the Eighth Circuit, sitting by designation.
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make.” Id. at 920. Therefore, we review the district court’s sanction of dismissal
in this case for abuse of discretion. Mobley v. McCormick, 40 F.3d 337, 340
(10th Cir. 1994).
The district court reviewed both the magistrate judge’s recommendation
and the record and concluded that the history of the suit “clearly demonstrates
plaintiff’s continuing obstreperous lack of cooperation in the discovery process
and a cavalier disregard for the rules of this Court governing discovery.” R. Vol.
II, tab 55 at 4. The court also noted that plaintiff had made no attempt to justify
his actions as requested in the magistrate judge’s show cause order.
We have reviewed the record. While plaintiff offers reasons for his
actions, these reasons are specious. Plaintiff has presented no valid reasons either
before the district court or before this court why the sanction of dismissal of his
action for failure to prosecute was an abuse of discretion.
The judgment of the United States District Court for the District of
Wyoming is AFFIRMED. The mandate shall issue forthwith.
Entered for the court
Per curiam
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