United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DISMISSING CASE WITHOUT
N. PARRISH UNITED STATES DISTRICT COURT JUDGE.
May 11, 2017 Plaintiff filed this complaint,
alleging violations of federal civil rights that occurred in
2013 while he was an inmate at the Weber County correctional
facility. (Doc. No. 3.)
January 30, 2018 The court dismissed certain
defendants and ordered that service of process be effected on
remaining defendants. Remaining defendants were ordered to
file, in sequence, an answer, a Martinez report, and
a dispositive motion. (Doc. No. 8.) The Order further stated,
“[i]f served with a summary-judgment motion . . .
Plaintiff must submit a response within 30 days of the
motion's filing date.” (Doc. No. 8.)
March 14, 2018 Defendants filed their
answer. (Doc. No. 16.)
April 3, 2018 Plaintiff filed a change of
address. (Doc. No. 17.)
June 12, 2018 Defendants filed their
Martinez report. (Doc. No. 18.)
July 12, 2018 Defendants filed their Motion
for Summary Judgment. (Doc. No. 25.)
Nov. 29, 2018 The court ordered plaintiff to
show cause within 30 days why this action should not be
dismissed for failure to prosecute and file a response to
defendants' Motion for Summary Judgment. (Doc. No. 32.)
court has not heard from plaintiff for nearly ten months
(since April 3, 2018), during which time this litigation has
ground to a halt as a result of plaintiff's failure to
file two required responses: a response to defendants'
Motion for Summary Judgment, and a response to this
court's Order to Show Cause.
Rule of Civil Procedure 41(b) allows involuntary dismissal of
an action “[i]f the plaintiff fails to prosecute or to
comply with . . . a court order.” Fed.R.Civ.P. 41(b).
District courts may dismiss actions sua sponte for
failure to prosecute. Olsen v. Mapes, 333 F.3d 1199,
1204 n.3 (10th Cir. 2003) (“Although the language of
Rule 41(b) requires that the defendant file a motion to
dismiss, the Rule has long been interpreted to permit courts
to dismiss actions sua sponte for a plaintiff's
failure to prosecute or comply with . . . court
orders.”); see also Link v. Wabash R.R. Co.,
370 U.S. 626, 630 (stating court has inherent authority to
clear “calendar of cases that have remained dormant
because of the inaction or dilatoriness of the parties
seeking relief”); Bills v. United States, 857
F.2d 1404, 1405 (10th Cir. 1988) (“Dismissal for
failure to prosecute is a recognized standard operating
procedure in order to clear the deadwood from the courts'
calendars where there has been prolonged and unexcused
“a district court may, without abusing its discretion,
[dismiss a case without prejudice] without attention to any
particular procedures.” Nasious v. Two Unknown
B.I.C.E. Agents at Araphoe Cty. Justice Ctr., 492 F.3d
1158, 1162 (10th Cir. 2007). But a dismissal without
prejudice is effectively a dismissal with prejudice if the
statute of limitations has expired on the dismissed claims.
Gocolay v. N.M. Fed. Sav. & Loan Ass'n, 968
F.2d 1017, 1021 (10th Cir. 1992). Thus, the court must
determine if the statute of limitations has expired on
plaintiff's claims if he were to refile them after
four-year residual statute of limitations . . . governs suits
brought under [§] 1983.” Fratus v.
Deland, 49 F.3d 673, 675 (10th Cir. 1995). And
“[a]ctions under § 1983 normally accrue on the
date of the [alleged] constitutional violation, ”
Garza v. Burnett, 672 F.3d 1217, 1219 (10th Cir.
2012), as § 1983 claims “accrue when the plaintiff
knows or has reason to know of the injury that is the basis
of the action.” Workman v. Jordan, 32 F.3d
475, 482 (10th Cir. 1994). The court notes that “[a]
plaintiff need not know the full extent of his injuries
before the statute of limitations begins to run, ”
Industrial Constructors Corp. v. U.S. Bureau of
Reclamation, 15 F.3d 963, 969 (10th Cir. 1994); see
also Romero v. Lander, 461 Fed.Appx. 661, 669 (2012)
(section 1983 case), and ...