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Gibson v. Benzon

United States District Court, D. Utah

February 21, 2019

DAVID ALLEN GIBSON, Petitioner,
v.
LARRY BENZON, Respondent.

          MEMORANDUM DECISION & DISMISSAL ORDER

          TENA CAMPBELL, UNITED STATES DISTRICT COURT JUDGE

         BACKGROUND

         • March 28, 2014 Petitioner sentenced to fifteen-years-to-life in state court. (Doc. No. 1.)

         • January 22, 2016 Conviction affirmed on direct appeal. State v. Gibson, 2016 UT App 15, cert. denied, 379 P.3d 1181 (Utah May 18, 2016).

         • July 3, 2017 Petitioner filed federal habeas-corpus petition. (Doc. No. 1.)

         • April 3, 2018 The Court ordered Respondent to answer the petition and file a proposed order. (Doc. No. 6.) The Order stated, “Within thirty days after the answer and proposed order are filed by Respondent(s), Petitioner must file any objections.” (Id. (Emphasis added.))

         • July 18, 2018 Respondent answered by filing a Motion to Dismiss and a proposed order on the motion. (Doc. No. 13.)

         • August 9, 2018 The Court granted Petitioner's motion for extension until September 17, 2018 to file objections to the Motion to Dismiss. (Doc. No. 15.)

         • September 19, 2018 Petitioner moved for a second time extension, until October 17, 2018, to file his objections. (Doc. No. 16.)

         • November 14, 2018 The Court ordered Petitioner to within thirty days show cause why this action should not be dismissed for failure to prosecute and file objections. (Doc. No. 17.)

         Petitioner has not contacted the Court since September 19, 2018 (nearly five months ago).

         ANALYSIS

         Federal Rule of Civil Procedure 41(b) allows involuntary dismissal of an action “[i]f the [petitioner] fails to prosecute or to comply with . . . a court order.” Fed.R.Civ.P. 41(b). This Court 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 [respondent] file a motion to dismiss, the Rule has long been interpreted to permit courts to dismiss actions sua sponte for a [petitioner'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 delay.”).

         Generally, “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 County Justice Ctr., 492 F.3d 1158, 1162 (10th Cir. 2007). But a dismissal without prejudice is effectively a dismissal with prejudice if the period of limitation has expired on dismissed claims. Gocolay v. N.M. Fed. Sav. & Loan Ass'n, 968 F.2d 1017, 1021 (10th Cir. 1992). Thus, the Court must ...


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