UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

MOHAMED ZENATI,

Plaintiff-Appellant,

v.

ECHOSTAR, INC., a/k/a Dish Network, Echosphere, Houston Tracker System, and Skynet; TERRI SIPE,

Defendants-Appellees.

No. 99-1233

(D. Colo.)

(D.Ct. No. 97-Z-1809)
____________________________

ORDER AND JUDGMENT*

Before BRORBY, BARRETT, and LUCERO, 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.

Mohamed Zenati, proceeding pro se, appeals the district court's dismissal of his civil complaint for failure to prosecute. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

Mr. Zenati filed an employment discrimination complaint August 14, 1997, naming Echostar, Inc. and several of its employees as defendants. On February 24, 1999, a magistrate judge issued a Recommendation for Dismissal based on Mr. Zenati's failure to: (1) appear before the court on three separate occasions after which the court issued orders to show cause; (2) pay opposing counsel $200.00 in attorney's fees as an initial sanction for failure to prosecute; (3) provide discovery, or provide it in a timely fashion; (4) cooperate with opposing counsel in preparing the pretrial order; and (5) conduct discovery, after receiving four extensions, until five days prior to expiration of the deadline when he sought to depose nine individuals. The magistrate judge found Mr. Zenati's response to the final order to show cause baseless because Mr. Zenati provided excuses showing he was simply "too tired and too busy to be fully attentive to this case."1

In recommending dismissal, the magistrate judge carefully analyzed the factors to be considered before imposing sanctions.2 First, the magistrate judge found Mr. Zenati's inattention and failure to appear at three conferences, timely provide discovery, and cooperate in preparing the pretrial order caused the defense increased expenses. The magistrate judge also found these same items inconvenienced the court which scheduled its docket for three conferences in which Mr. Zenati failed to appear without legitimate excuse or reason.

As to Mr. Zenati's culpability, the magistrate judge determined his failure to pay the $200.00 sanction and subsequent inattention and failure to provide discovery sufficiently evidenced his culpability. In addition, the magistrate judge found Mr. Zenati received ample warnings that his "failings" could result in dismissal, as contained in the magistrate judge's three orders to show cause.3 Finally, the magistrate judge determined "any sanction other than dismissal would be ineffective and inappropriate" because Mr. Zenati refused to pay the initial and lesser $200.00 sanction, as ordered on two prior occasions.4 Construing Mr. Zenati's pro se pleadings liberally, the district court adopted the magistrate judge's recommendation and dismissed Mr. Zenati's claims with prejudice after conducting a de novo review of the magistrate judge's recommendation, objections thereto, and applicable law.

We review dismissal for failure to prosecute or noncompliance with court orders for abuse of discretion. Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993); see also Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). In so doing, we recognize 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)). However, when a dismissal is with prejudice, the district court must explain why it imposed the extreme sanction of dismissal. Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1439 (10th Cir. 1990). We also recognize that even though Mr. Zenati, as a pro se litigant, is held to a less stringent standard than a licensed attorney, he must nevertheless follow the same rules of procedure governing other litigants. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993).

We have carefully reviewed Mr. Zenati's responses and objection to the magistrate judge's orders to show cause and recommendation for dismissal, as well as his brief on appeal. Mindful that the sanction of dismissal with prejudice is an extreme measure, we nonetheless find Mr. Zenati repeatedly and inexcusably failed to comply with the lower court's orders or to otherwise prosecute his case. His reasons for his failure to prosecute are woefully insufficient to overcome the magistrate judge's well-reasoned recommendation for dismissal or to warrant any further discussion. Thus, under the circumstances presented, we find no abuse of discretion in the district court's decision to dismiss the complaint with prejudice. Accordingly, the district court's judgment is affirmed.

Entered by the Court:

WADE BRORBY

United States Circuit Judge