Opinion
Civil Action No. 1:18-cv-01097-DDD-SKC
11-18-2019
OLOYEA WALLIN, Plaintiff, v. SYGMA NETWORK, and JON STANLEY, Defendants.
REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO PROSECUTE [#56]
This Report and Recommendation ("Recommendation") addresses Defendant Sygma Network's ("Sygma") Motion to Dismiss for Failure to Prosecute (the "Motion") [#56]. The Court has reviewed the Motion, Plaintiff Oloyea Wallin's ("Wallin") Response [#61], the entire case file, applicable law, and held a hearing on the Motion on October 31, 2019 [See #84 (courtroom minutes of hearing)]. For the following reasons, the Court RECOMMENDS that the District Judge GRANT the Motion.
The Court uses "[#___ ]" to refer to specific docket entries in CM/ECF.
A. BACKGROUND
Proceeding pro se, Wallin filed his Complaint alleging Title VII discrimination based on race and color and alleging retaliation in the form of a "constructive discharge." Wallin sued Sygma, Jesse Staley, and Jon Stanley (collectively "Defendants"). [#1 pp. 2-3.] The following factual allegations are taken as true for purposes of this analysis under Fed. R. Civ. P. 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
As of the date of this Recommendation, Jon Stanley has yet to be served under Fed. R. Civ. P. 4. Jesse Staley was previously dismissed from the action. [#53.]
Sygma hired Wallin as a delivery driver in February 2017. [#1 at p.3.] While employed, Defendants harassed Wallin, an African American, by falsely accusing him of failing to return undelivered products to the warehouse, and by altering, falsifying, and manipulating his work performance documents to portray his performance as "very poor in comparison to his assigned white counterpart." [Id.] While on bereavement leave, Wallin was discharged from his scheduled route and placed on an on-call status while "his white . . . counterpart was placed on another high paying . . . route." [Id.] After he reported this treatment to Sygma's human resources department, Defendants retaliated against Wallin by increasing their harassment. Defendants subsequently demoted Wallin, which effectively cut his wages by more than half. [Id.]
Since filing the Complaint on May 8, 2018, Wallin has exhibited a proclivity for non-compliance with Court orders and discovery deadlines. To document the issues raised by Sygma's Motion, the following description of events are taken from the record.
1. Wallin's Violation of Orders Related to the Failure to Serve Jon Stanley
Jon Stanley ("Stanley") is a named Defendant. [See #1.] However, the United States Marshals Service was unable to serve Stanley using the address provided by Wallin. [#17] On August 9, 2018, Magistrate Judge Scott T. Varholak ordered Wallin "to provide a valid address for [Stanley] on or before August 24, 2018." [#18 (reminding Wallin that "[i]t is the [pro se] plaintiff's responsibility to provide the United States Marshal with the address of the person to be served.").] On August 13, 2018, Magistrate Judge Varholak vacated the scheduling conference, in part, because Wallin had yet to provide a proper address for Stanley. [See #19.] Wallin did not meet his court-ordered, August 24 deadline or seek an extension of time.
After this matter was re-assigned to the undersigned, the Court raised the issue of service on Stanley at the October 30, 2018 Scheduling Conference. [#37 at p.2.] At the Scheduling Conference, Wallin acknowledged that this was not his first-time in civil litigation. [Cf. #37 (Courtroom Minutes for Scheduling Conference).] He also indicated he was not aware that the United States Marshals had not served Stanley, and he requested 14 days to effectuate service. The Court granted Wallin until November 20, 2018 to effectuate service on Stanley by filing a notice with the Court of Stanley's address for the U.S. Marshals to effectuate service by that date or file a Status Report by that date to update the Court on the status of service on Stanley. [Id.] The Court warned Wallin that if he was unable to effectuate service by that date, the Court would recommend Stanley's dismissal. [Cf. id.]
Wallin missed his court-ordered deadline to file his notice or a status report regarding the status of service on Stanley. He instead filed his notice 13 days late, on December 3, 2018. [#39.] Wallin simultaneously filed a motion asserting excusable neglect for his untimely filing. [#38.] The Court set a January 8, 2019, Status Conference to address the untimely filing. [#44.] Wallin did not appear at the Status Conference. [See #49.] Accordingly, the Court denied Wallin's motion for excusable neglect, and did not order the Marshals to effect service on Stanley. [Id.]
To date Stanley has not been served in this matter. At the October 31, 2019 Motion Hearing, both parties acknowledged that Stanley should no longer be a named Defendant in this matter. Thus, the Court also RECOMMENDS Stanley's dismissal.
2. Wallin's Late Responsive Filings to Motions to Dismiss [#25 and #56]
On September 28, 2018, Jesse Staley ("Staley"), a Defendant at the time, filed a Motion to Dismiss. [#25.] Wallin failed to respond to Staley's Motion to Dismiss by the October 19, 2018 deadline. [See #37.] The Court raised Wallin's failure to respond at the October 30, 2018 Scheduling Conference. [Id.] Wallin stated that he did not respond because he was unaware of the Motion to Dismiss being filed. The Court ordered defense counsel to email that Motion to Dismiss to Wallin and granted him until November 20, 2018 to respond to the motion. [Id.] Wallin filed his response 21 days late, on December 11, 2018. [#42.]
On March 26, 2019, Sygma filed the current Motion. [#56.] On April 18, 2019, Sygma filed a Notice of Non-Response and Filing of Supplemental Information [#60] informing the Court of Wallin's failure to respond to the Motion. Wallin then filed his response eleven days later, which was 13 days late. [#61.] The Response did not request that the Court accept the untimely filing or make any attempt to argue excusable neglect.
At the Motion Hearing, the Court asked Wallin why the Response was untimely. He stated that the Motion was frivolous and that he did not believe he had an obligation to respond to every motion filed. [#61.] While the Court agreed with Wallin that he was not required to file a response to every motion, the Court explained that it would expect a party to respond to a dispositive motion that seeks dismissal of that party's case, assuming the party has an in interest in not having their case dismissed. However, due to the nature of the relief sought by Sygma's Motion, the Court accepted the untimely Response and considered it in coming to this Recommendation.
3. The Court Issues an Order to Show Cause [#48]
After Wallin did not appear at the January 8, 2019, Status Conference, the Court issued an Order to Show Cause "why this case should not be dismissed with prejudice for failure to prosecute, and why the Court should not order sanctions against Mr. Wallin in the form of attorneys fees incurred by Defendants' for the preparation and participation at the Status Conference." [#48.] The Court ordered Wallin to respond by January 18, 2019. [Id.] This time, Wallin did meet his filing deadline. [See #51.] He stated his reasons for not appearing at the Status Conference were: (1) "that he totally confused the dates for the Status Conference;" and (2) "that he has been undergoing some serious medical issues that also may have contributed to his mental state, which includes his kidney failure and his recent battle with pneumonia . . . ." [Id. at ¶¶2-3.]
Ultimately, the Court discharged the Order to Show Cause without recommending sanctions against Wallin. [#54.] The Court cautioned Wallin that his medical issues and "mistaking the date of a Court ordered hearing do not excuse Wallin of his duties to prosecute this matter." [Id. at p.2.] The Court again stated: "[p]ro se parties are obligated to comply with the Federal Rules of Civil Procedure, the Local Rules of this District, and this Court's Practice Standards, and all Court Orders." [Id. (citing Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2009)).]
4. Wallin's Pre-Trial Discovery Tardiness
Sygma served Wallin with its First Set of Discovery Requests ("Discovery Requests") on December 21, 2018, making his responses due January 22, 2019. [#55 at p. 1.] Wallin failed to respond to the Discovery Requests by the deadline. [Id. at p. 2.] Sygma emailed Wallin on January 30 and February 11, 2019, requesting responses, but Wallin did not respond to either email. [Id.] He finally served his responses to the Discovery Requests 23 days late, on February 14, 2019. [Id.] According to Sygma, the responses did not "include any responsive documents, failed to identify basic categories of responsive information, and failed to respond to several of Sygma's document requests." [Id.] Sygma served Wallin with a Rule 37 letter to confer over his deficient responses and obtain supplemental information by February 25, 2019. [Id.] However, Wallin did not respond to defense counsel's repeated attempts to confer, which also involved seven total phone and email attempts between March 6 and 20, 2019. [Id. at p. 3.]
As a result, Sygma filed a Motion to Compel on March 26, 2019. [See generally id.] Wallin did not file a response to the Motion to Compel. He instead filed his own Motion to Compel [#67] on June 12, 2019, and the Court set a Discovery Hearing to address both motions. [#70.] The Court took the issues raised in the Motions to Compel under advisement at the July 18, 2019 Discovery Hearing, and gave Wallin 10 days to e-mail the Court a copy of the email Wallin argued he timely sent opposing counsel that attached his discovery responses. [#74.] Yet again, Wallin missed his court-ordered deadline. Sygma filed a Notice of Non-Compliance on July 30, 2019. [#75.] Wallin finally complied with the Court's order on July 31, 2019, which was three days late. His email to Chambers did not include an explanation for his untimeliness.
On June 12, 2019, the Court struck both parties' Motions to Compel for failure to comply with the Court's Practice Standards regarding discovery disputes, and instead treated those pleadings as discovery briefs. [#69.]
In a separate pre-trial discovery matter, Wallin walked out of his deposition an hour early. Sygma deposed Wallin on April 16, 2019. [#59.] He arrived at his deposition 30 minutes late and terminated the deposition early after refusing to answer questions regarding his memory. [Id. at p. 3.] Wallin acknowledges that he left the deposition early and claims that he only did so after "several mockeries of [a] medical mental and physical condition that plaintiff could not tolerate." [#61 at pp.10-11.]
5. Wallin's Late and Non-Arrivals for Court Proceedings
As mentioned above, by minute order dated December 17, 2018 [#44], the Court ordered a status conference for January 8, 2019 at 9:00 a.m. Wallin was a no-show on January 8, and the Court issued an Order to Show Cause. [#49.] On March 19, 2019, the Court discharged the Order to Show Cause while warning Wallin that "future non-compliance may lead to sanctions, fines, cost of Defendant's legal fees, or dismissal of this matter for failure to prosecute." [#54.]
By order dated June 14, 2019, the Court ordered a discovery hearing for July 18, 2019 at 2:00 p.m. [#70.] The hearing did not commence until 2:27 p.m. because Wallin arrived 27 minutes late. [#74; #78 at pp. 2-8.] The Court admonished Wallin for his lateness on the record, as follows:
Mr. Wallin, I'm making a record of this because I have concerns that there is a pattern on your behalf of missing deadlines, being late, not showing up for court appearances. There is a motion to dismiss that is pending as having been filed by the defendant that is -- the basis of that motion is, in part, your conduct in that regard, and your being late today will certainly further bear on the issues that the Court takes into consideration when ruling on that motion.[#78 at p.8 ll.12-25, p.9 l.1.]
It's important, sir, that to the extent your case persists that you follow all rules and obligations to the Court under the Rules of Civil Procedure, under the Practice Standards and so forth, and I'm concerned that there has been a pattern of conduct on your part that suggests that that's not occurring in the manner in which it needs to.
By order dated October 4, 2019, the Court set a Motion Hearing (on Defendant's Motion to Dismiss for Failure to Prosecute) for October 31, 2019 at 1:30 p.m. [#79.] The hearing did not commence until 1:54 p.m. because Wallin arrived 51 minutes late. [#84.] The Court again admonished Wallin for his tardiness, violation of court orders (to include orders setting hearings to commence at a prescribed time), violation of discovery rules, and seeming lack of interest in prosecuting his case consistent with his obligations to the Court, the Defendant, and the applicable and governing rules and standards. [See generally the FTR for these proceedings held that day.]
B. LEGAL STANDARDS
1. Review of a Pro Se Party's Filings
A federal court must construe a pro se plaintiff's pleadings "liberally" and hold the pleadings "to a less stringent standard than formal pleadings filed by lawyers." Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009). "[The] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Id. (citing Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)). The Tenth Circuit has interpreted this rule to mean:
[I]f the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). This interpretation is qualified in that it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." Id.; see also Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) ("[W]e will not supply additional facts, nor will we construct a legal theory for plaintiff that assumes facts that have not been pleaded.").
2. Motion to Dismiss for Failure to Prosecute
Federal Rule of Civil Procedure 41(b) allows a district court to dismiss an action with prejudice if the plaintiff fails "to comply with [the Federal Rules of Civil Procedure] or any order of the Court." Fed. R. Civ. P. 41(b); see also Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003). District courts must consider certain enumerated criteria to determine if dismissal under Rule 41(b) is appropriate. Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003). This criteria includes: "(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the actions would be likely sanction for noncompliance; and (5) the efficacy of lesser sanctions." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994) (citation omitted).
C. ANALYSIS
1. Actual Prejudice to Defendant
Wallin has stymied Sygma's ability to obtain discovery in this matter by his repeated failures to meet response deadlines set by the Federal Rules of Civil Procedure and this Court. [See #55 at p.4 (Wallin failed to respond to Sygma's discovery requests within 30 days); and #75 at p. 1 (Sygma's Notice of Wallin's Non-Compliance with Court's Discovery Hearing Order)]. Since filing this case, Wallin has exhibited a pattern of untimely disclosures and filings. "When a pro se litigant's errors or failings become continuous or regular, the actions have a much greater impact on the adverse party than infrequent missteps in the judicial process." Brewer v. DKD Elec. Co., Civ. No. 02-0407 LH/RLP, 2004 WL 6218811, at *2-3 (D.N.M. June 14, 2004) (holding that such circumstances warrant a dismissal for failure to prosecute "despite the pro se status of a plaintiff").
In this instance, the resulting prejudice to Sygma is not limited to an inability to obtain discovery critical to its defense, although this alone is sufficient prejudice favoring dismissal. Wallin's delays and non-responses further prejudice Sygma by requiring it to expend time and incur attorney's fees to file otherwise unnecessary motions and notices with the Court. See Faircloth v. Hickenlooper, 758 F. App'x 659, 662 (10th Cir. 2018) (recognizing "prejudice from 'delay and mounting attorney's fees'") (citing Jones v. Thompson, 996 F.2d 261, 266 (10th Cir. 1993)). The Court finds that Wallin's pattern and practice (documented above) of failing to meet his litigation obligations under the applicable rules and orders of this Court has caused Sygma to suffer actual prejudice. This favors dismissal.
2. Interference with the Judicial Process
"Courts have the inherent power to impose a variety of sanctions on both litigants and attorneys in order to regulate their docket, promote judicial efficiency, and deter frivolous filings." Martinez v. Internal Revenue Service, 744 F.2d 71, 73 (10th Cir. 1984). "This power allows the court to balance the furtherance of justice with judicial economy. In certain situations, a dismissal is advantageous to the efficiency and efficacy of the judicial system and is an appropriate remedy." See Kalkhorst v. Medtronic, Inc., No. 18-CV-00580-KLM, 2018 WL 6697072, at *3 (D. Colo. Dec. 19, 2018). Moreover, the Court has an obligation to construe, administer, and employ the Federal Rules of Civil Procedure "to secure the just speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1.
The Court concludes that Wallin's untimeliness in responding to discovery requests and motions, and in appearing late or not at all for Court-ordered hearings, has significantly interfered with the Court's ability to effectively administer justice. This Court has limited resources and an extensive docket, and "the time spent on a recalcitrant litigant such as Plaintiff takes time away from individuals in other cases who have meritorious claims and serious injuries that deserve to be redressed promptly. Accordingly, the consequences that result from Plaintiff's ongoing interference with the judicial system cannot be understated." Valentine v. PNC Fin. Servs. Group, et al., No. 18-cv-01934-CMA-SKC, 2019 WL 5957297, *3 (D. Colo. Nov. 13, 2019).
Wallin frames the issue of his litigation failures as simply Sygma's dissatisfaction with his ability to litigate his case with the knowledge and resources of an attorney. [Cf. #84.] But as the Court explained to Wallin during the October 31 hearing, that is not the issue at all. The Tenth Circuit has "repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants." Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (internal quotation marks omitted). A party's status as a pro se litigant does not relieve a party of the obligation to timely comply with court orders or other applicable rules. Cf. Cosby v. Astrue, 507 Fed. App'x 819, 821 (10th Cir. 2013) (noting that a pro se litigant is not relieved of "the responsibility to learn and follow the correct procedures to file a timely notice of appeal"); Shell v. Am. Family Rights Ass'n, 899 F. Supp. 2d 1035, 1044 (D. Colo. 2012) ("[P]ro se status does not relieve a party of the duty to comply with the various rules and procedures governing litigants and counsel or the requirements of the substantive law, and in these regards, the Court must apply the same standard to counsel licensed to practice law and to a pro se party.").
Moreover, this Court has gone to great lengths to afford Wallin leeway for his abundant transgressions and warn him of the potential consequences for his actions. Nevertheless, his lapses persist. These lapses have resulted in a docket clogged with filings by Sygma to address Wallin's failures, time spent in multiple hearings to address Wallin's conduct, and time spent by counsel and the Court waiting for Wallin to arrive on time for court appearances, if arrive at all. "The Court has had enough." Valentine, 2019 WL 5957297, at *2. This factor favors dismissal. Cf. Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992) ("[W]e have repeatedly upheld dismissals in situations where the parties themselves neglected their cases or refused to obey court orders.").
3. Culpability of Litigant
Pro se litigants should be afforded deference in the form of "[o]ccasional allowances by the court for honest mistakes [which] provide leeway for plaintiffs who are not trained in the law and do not have representation. This deference, though, should be balanced with potential abuse . . . and constant delays in the judicial system." Brewer, 2004 WL 6218811, at *2-3. The Court gave Wallin deference when it discharged the Order to Show Cause and warned him that continued non-compliance with Court orders and delays could result in this matter's dismissal for failure to prosecute. [#54 at p.2.] The Court has shown Wallin additional deference by heretofore tolerating and allowing his recalcitrant behavior, which has persisted after multiple warnings. Thus, Wallin is culpable for his conduct. This factor favors dismissal.
To be fair, the Court is aware that Wallin claims to suffer from ailments that affect his memory. While the Court is sympathetic with any challenges these ailments may pose for Wallin, Wallin has never claimed that these challenges are the cause of his inability to arrive to Court on time (or at all), or timely comply with court orders, or otherwise meet his obligations under the applicable rules. [See #51 at ¶¶2-3 (suggesting his mental and physical ailments to be more akin to distractions than deterrents).] Even assuming Wallin were to now make that claim, it would not change the Court's view of dismissal considering the ample leeway and warnings the Court has provided Wallin over an extended period. If his ailments are indeed the cause of his litigation failures, it is reasonable to expect that Wallin would have requested accommodations in the face of the Court's many warnings, but he has not. He has instead only offered the excuse that he is trying his best and since he is not a trained lawyer, the Court should not expect him to comply with its orders, applicable rules, or arrive to court on time. Thus, he remains culpable. This factor favors dismissal.
4. Warning in Advance of Dismissal
The Court has warned Wallin numerous times, both in writing and orally during hearings, that his failure to comply with court orders or meet his obligations under the applicable rules may result in dismissal of his case for failure to prosecute. It warned him in the Order to Show Cause and in the Court's written order discharging the Order to Show Cause on March 29, 2019 [#48; #54]. The Court orally admonished him during the July 18, 2019 hearing and discussed the consequences of his conduct and its bearing on Defendant's then pending Motion to Dismiss. [See generally #78; see also id. at p.8 ll.12-25, p.9 The Court again and extensively admonished and warned him during the October 31, 2019 hearing. [#84 (see generally the FTR for these proceedings).] This is in addition to the fact that Sygma's Motion to Dismiss for Lack of Prosecution [#56], which has been pending since March 26, 2019, further warned Wallin of the risk of dismissal over his litigation conduct. Thus, Wallin has been amply warned. This favors dismissal.
5. Efficacy of Lesser Sanctions
Sanctions less than dismissal with prejudice would not be effective. Wallin is proceeding pursuant to 28 U.S.C. § 1915 "on the basis of inability to prepay fees or give security therefor." [#7 at p.1.] Therefore, monetary sanctions are likely to be of no avail. Moreover, Wallin's conduct already includes multiple violations of court orders, and his behavior has persisted despite this Court's multiple direct warnings and verbal admonishments in open court. This suggests that sanctions other than dismissal with prejudice are unlikely to modify his behavior. This factor favors dismissal. Meade v. Grubbs, 841 F.2d 1512, 1520 n.6 (10th Cir. 1988).
D. RECOMMENDATION
The Court is keenly aware of Wallin's pro se status as well as the general view that the power of dismissal should be exercised lightly. The sanction of dismissal should be granted sparingly to preserve the adjudicatory rights of the plaintiff. LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (involuntary dismissal is a harsh remedy to be utilized only in extreme situations, particularly when pro se litigants are involved). The Court is also aware that the Tenth Circuit has "long held that dismissal of an action with prejudice is a drastic sanction that should be employed only as a last resort." Davis v. Miller, 571 F.3d 1058, 1061 (10th Cir. 2009).
The Court does not make this recommendation lightly. But this is one of those extreme situations warranting dismissal, in this Court's view. The Court cannot continue to overlook Wallin's pattern of disrespect for the litigation process to the detriment of Defendant, Court resources, and the pursuit of justice. At some point, the cycle must be broken, and the Court cannot continue to "turn the other cheek" in the face of a litigant who has demonstrated a pattern of unwillingness to comply with court orders or litigation obligations. While Wallin suggested to the Court that he should get points for trying to comply with his obligations, in federal court there are no points for trying. Instead, in federal court a litigant must do. Cf. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2009). Under the circumstances of this case, where Wallin's efforts to comply have resulted in a consistent pattern of dereliction that heavily favors each of the factors discussed in Mobley, supra, the Court finds the extraordinary relief of dismissal for failure to prosecute appropriate in this matter.
For the above-reasons, the Court RECOMMENDS the Motion [#56] be GRANTED and that this matter be dismissed, in its entirety, with prejudice.
Procedurally, Defendant Jon Stanley is still a party in this litigation. Accordingly, this Recommendation should fully dismiss this matter, including all claims against Stanley, for the additional reason that Wallin failed to timely provide Stanley's address information so that the Court could order service by the US Marshals. [See ##37 and 39.]
DATED: November 18, 2019.
BY THE COURT:
/s/_________
S. Kato Crews
United States Magistrate Judge NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2) , the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge and waives appellate review of both factual and legal questions. Thomas v. Arn , 474 U.S. 140, 148-53 (1985); Makin v. Colorado Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996).