Plаintiff Michael Ashby appeals from a district court order dismissing his suit with prejudice as a sanction for discovery abuse pursuant to Fed.R.Civ.P. 37(a)(2)(B).
1
We review for abuse of discretion.
Knowlton v. Teltrust Phones, Inc.,
Progress in the litigation was slowed not only by the contentious discovery proceedings, but also by a dispute over the existence/designation of defendant Crowley Correctional Services Limited Liability Company (Crowley LLC), which did not file an answer until some nineteen months into the case. In the meantime, Ashby sought a default judgment against Crowley LLC, which was denied long before the case was dismissed under Rule 37. On appeal, Ashby challenges this interlocutory ruling as well. We review the matter for abuse of discretion,
see Dennis Garberg & Assocs., Inc. v. Pack-Tech Int’l Corp.,
Dismissal under Rule 37
Ashby commenced this action for damages under 42 U.S.C. § 1983, alleging that while he was confined in a Colorado prison *1150 facility operated by defendants, he ate food contaminated with pieces of glass and incurred internal injuries as a result. Defendants sought to discover information relevant to Ashby’s allegations by obtaining his medicаl records and by taking his deposition. Ashby’s response to these efforts formed the basis for the district court’s dismissal of his case.
The rule governing depositions provides in relevant part:
(1) A party may take the testimony of any person, including a party, by deposition upon oral examinаtion without leave of court except as provided in paragraph (2)....
(2) A party must obtain leave of court ... if the person to be examined is confined in prison....
Fed.R.Civ.P. 30(a). Invoking the plain language of the rule, Ashby insisted that defendants obtain a court order permitting them to depose him in prison. The magistrate judge recommended sanctions for Ashby’s refusal to be deposed without court order. The magistrate judge gave two reasons for this conclusion: (1) as the party bringing the action, Ashby could not “avoid the inevitability of a deposition” and was “required by the rules to cooperate with such discovery,” and (2) Ashby’s current custodian did not require a court order before making inmates available for depositions. R. doc. 193 at 7.
The district court adopted the magistrate judge’s recommendation. The court observed that “Plaintiff has repeatedly engaged in tactics which are designed to delay determination of this matter on the merits in an expeditious and economical matter.” R. doc. 198 at 4. Noting the dilatory manner in which Ashby had prosecuted his case, the district court observed that the “Magistrate Judge repеatedly instructed the Plaintiff to narrow overbroad and burdensome requests and subpoenas” and that “[t]he most recent of these concerned the Plaintiffs fifth set of requests for admissions.” Id. at 2 (emphasis in original). Although the district court noted that the “matter at issuе [in its sanction order] concerns the Defendant’s request for Plaintiffs medical records[,]” it also noted that at issue were the facts that Ashby “refused to provide a written release [for the medical records] and refused to cooperate in setting his deposition.” Id. (emphasis added).
We can understand the magistrate judge’s frustration with a litigant who is so quick to complain of the opposing party’s supposed failures to meet discovery obligations and so slow to meet his own, and whose litigation tactics threaten to clog the administration of justice. Moreover, it seems unfair and abusive for a plaintiff to file a lawsuit and then refuse to make himself available for reasonable questioning regarding his claims. Where, as here, prison administrаtors have no objection to scheduling a prisoner’s deposition, the apparent purpose of the Rule seems to be satisfied without the formality of a court order. See
Kendrick v. Schnorbus,
On appeal, defendants cite no case law suggesting that the directive in Rule 30(a)(2) does not apply in the case of a prisoner plaintiff. On the contrary, сases in other circuits confirm that Rule 30(a)
*1151
requires a court order when defendants seek to depose a prisoner plaintiff.
See Kendrick v. Schnorbus,
As noted above, Ashby was sanctioned for the recalcitrance seen in his resistance to both his deposition and the discоvery of his medical records. Nothing Ashby argues on appeal justifies or excuses his lack of cooperation in the latter respect. However, because the district court’s determination of whether and (pеrhaps more pointedly) how severely to sanction Ashby relied on his perceived misconduct in the aggregate rather than in the alternative, we are left with a ruling that rests in part on legal error.
This court has noted on numеrous occasions that an erroneous rationale is not necessarily fatal to a decision under review, if there is an alternative ground for affirming the result reached. However, our authority in this regard is limited in accоrd with our institutional role as an appellate court, which may give plenary consideration solely to matters of law: we may rely on alternative grounds only “ ‘for which there is a record sufficient to permit conclusiоns of law.’ ”
Dist. 22 United Mine Workers of Am. v. Utah,
Considering just the discovery conduct the district court properly deemed unjustified, we cannot say the only legally permissible exercise of its discretion would be to dismiss the case—though it is not fоr us to gainsay that result either. Hence, we must allow the district court to “exercise its discretion anew” in light of the legal circumstances clarified by this opinion.
True Temper Corp.,
Entry of Default
Ashby argues that he should have been granted an entry of default agаinst defendant Crowley LLC for “failfure] to plead or otherwise defend,” pursuant to Fed.R.Civ.P. 55(a). Ashby asked the clerk to enter the default while a motion to dismiss the defendant was still pending. The clerk denied the request in a docket notе explaining that an answer would not be due from Crowley LLC until ten days after it received notice that the motion to dismiss had been denied. See Fed. R.Civ.P. 12(a)(4). Ashby filed a motion to vacate the clerk’s note, which the magistrate judge denied in а minute order. He *1152 then filed an objection to the magistrate judge’s order, but, perhaps because the appropriate means to challenge the order would have been by way of a request for reconsideration rather than objection, compare 28 U.S.C. § 636(b)(1)(A) with id. § 636(b)(1)(C), the district court never addressed the matter before dismissing the entire action without qualification several months later. As the latter disposition effectively foreclosed the relief Ashby sоught by way of default, however, we consider the matter to be properly before us for review.
We review decisions regarding default judgments for abuse of discretion.
Dennis Garberg & Assocs., Inc.,
In sum, we hold that Ashby’s request for entry of default against Crowley LLC was properly denied prior to the dismissal of the case as a sanction under Rule 37. The latter disposition, however, cannot stand on the rationale expressed by the district сourt, though it may yet be a permissible exercise of that court’s discretion in response to Ashby’s unjustifiable resistance to the discovery of his medical records. We therefore vacate the order of dismissal and remand for further proceedings, including reconsideration of the issue of sanctions, consistent with the principles discussed herein. Finally, we note Ashby attempts to interject additional issues into this appeal by way of his reply brief. Undеr settled and self-explanatory circuit precedent, these matters are deemed waived.
See, e.g., Stump v. Gates,
The judgment of the United States District Court for the District of Colorado is VACATED and the case is REMANDED for further proceedings consistent with this оpinion. The motion to supplement the record is denied.
Notes
. 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.
. We refer above to the unpublished Moomehi decision because it provides a helpful summary and practical illustration of the interrelated procedural rules which govern our disposition. We do not mean to imply that the decision itself is binding; under our local rules, it is not. See 10th Cir. R. 36.3(A).