David Berry Wright, Plaintiff-appellant, v. Sgt. Tequillo, Wendy Hufnagel, John Dunford and Yvonnecarter, Defendants-appellees, 76 F.3d 394 (10th Cir. 1996)

ORDER AND JUDGMENT¹ 

After examining the briefs and the 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); Tenth Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

David Barry Wright (Wright), an inmate of the Utah State Prison, appearing pro se and in forma pauperis, appeals from the district court's Order of June 13, 1995, adopting the Report and Recommendation of the United States magistrate judge and dismissing Wright's complaint for failure to prosecute and failure to comply with court orders.

Plaintiff-appellant Wright filed his 42 U.S.C.1983 civil rights complaint against four defendants: Wendy Hufnagel, an attorney who represented Wright in a prior state criminal action, who allegedly failed to properly represent Wright; John Dunford, an officer of the Utah Division of Adult Probation and Parole, who allegedly had a conflict of interest; Yvonne Carter, a Utah Department of Corrections property officer, who allegedly failed to act on Wright's request to have his property mailed to him in California; and Sergeant Tequillo, who was never served, but who allegedly confiscated Wright's legal property.

Wright took no steps to prosecute this action other than to file repetitive motions for appointment of counsel, and seeking transcripts and court records from prior state court proceedings. Finally, United States Magistrate Judge Samuel Alba, to whom the case had been referred, issued an order to show cause on April 11, 1995, directed to Wright to explain why this action should not be dismissed for failure to prosecute. Wright was given until May 15, 1995, within which to respond. Wright failed to respond. Thereafter, on May 16, 1995, the magistrate judge filed his Report and Recommendation recommending that the action be dismissed pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute and failure to comply with court orders. On May 30, 1995, Wright filed his objection to the Report and Recommendation but he did not explain why he had not prosecuted the action or responded to the order to show cause.

On appeal, Wright does not address the issue of whether the district court abused its discretion in dismissing this action for failure to prosecute and for failure to comply with court orders. Rather, Wright argues that this action should have been consolidated with two other civil actions he had filed in the federal district court for the District of Utah. Wright also raises unrelated claims concerning his medical needs, spiritual and religious needs, together with an allegation that the district court failed to file a complaint he had submitted raising these claims.

We will reverse a district court's decision to dismiss an action for failure to prosecute under Fed. R. Civ. P. 41(b) for an abuse of discretion. United States v. Berney, 713 F.2d 568, 571 (10th Cir. 1983). Dismissal under Rule 41(b) is viewed as an imposition of a sanction. Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). We recognize that a pro se litigant is held to less stringent standards than those applicable to licensed attorneys. Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir. 1988). Nevertheless, a pro se litigant "must follow the same rules of procedure that govern other litigants." Oklahoma Federated Gold and Numismatics, Inc. v. Blodgett, 24 F.3d 136, 142 (10th Cir. 1994).

We have review the record on appeal. We do not find any explanation or response from Wright relative to his failure to prosecute this action or to respond to the court's order to show cause. We hold that the district court did not abuse its discretion in dismissing this action.

We have considered appellant's late pro se motion to Certify the Record on Appeal filed January 4, 1996. The motion is denied.

AFFIRMED.