United States District Court, D. Utah
MEMORANDUM DECISION & DISMISSAL ORDER
District Judge Robert J. Shelby
October 26, 2017 Petitioner submitted federal habeas-corpus
petition. (Doc. No. 7.)
November 22, 2017 Petitioner ordered to within thirty days
file an inmate-account statement. (Doc. No. 2.)
December 29, 2017 Petitioner's inmate-account statement
filed. (Doc. No. 3.)
May 29, 2018 Petitioner ordered to pay five-dollar filing
fee. (Doc. No. 4.)
June 4, 2018 Filing fee received and petition filed. (Doc.
Nos. 5 & 7.)
July 30, 2018 Petitioner files “status report, ”
indicating intent to file amended petition. (Doc. No. 6.)
October 4, 2018 Petitioner ordered to within thirty days show
cause why this action should not be dismissed for failure to
prosecute and file an amended petition as indicated. (Doc.
has not contacted the Court since July 30, 2018 (over eight
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.”).
determining whether to dismiss this action, the Court applies
the factors from Ehrenhaus v. Reynolds, 965 F.2d 916
(10th Cir. 1992)-i.e., “(1) the degree of actual
prejudice to [Respondent]”; (2) “the amount of
interference with the judicial process”; (3) the
litigant's culpability; (4) whether the noncomplying
litigant was warned that dismissal was a likely sanction; and
(5) “the efficacy of lesser sanctions.”
Id. at 921 (internal quotation marks omitted);
see also Davis v. Miller, 571 F.3d 1058, 1061 (10th
Cir. 2009) (applying Ehrenhaus factors in habeas
case). Dismissal with prejudice is appropriate only when
these factors overshadow the judicial system's strong
preference to decide cases on the merits. DeBardeleben v.
Quinlan, 937 F.2d 502, 504 (10th Cir. 1991). The
Ehrenhaus factors are not “a rigid test;
rather, they represent criteria for the district court to
consider [before] imposing dismissal as a sanction.”
Ehrenhaus, 965 F.2d at 921; see also Lee v. Max
Int'l, LLC, 638 F.3d 1318, 1323 (10th Cir. 2011)
(“The Ehrenhaus factors are simply a
non-exclusive list of sometimes-helpful ‘criteria'
or guide posts the district court may wish to
‘consider' in the exercise of what must always be a
discretionary function.”); Chavez v. City of
Albuquerque, 402 F.3d 1039, 1044 (10th Cir. 2005)
(describing Ehrenhaus factors as “not
exhaustive, nor . . . equiponderant”); Archibeque
v. Atchison, Topeka & Santa Fe Ry. Co., 70 F.3d
1172, 1174 (10th Cir. 1995) (“[D]etermining the correct
sanction is a fact specific inquiry that the district court
is in the best position to make.”).
1: Degree of actual prejudice to Respondent.
Prejudice may be inferred from delay, uncertainty, and rising
attorney's fees. Faircloth v. Hickenlooper, No.
18-1212, 2018 U.S. App. LEXIS 36450, at *5 (10th Cir. Dec.
26, 2018) (unpublished); Jones v. Thompson, 996 F.2d
261, 264 (10th Cir. 1993); see also Auto-Owners Ins. Co.
v. Summit Park Townhome Ass'n, 886 F.3d 852, 860
(10th Cir. 2018) (concluding substantial prejudice when
plaintiff “sparked months of litigation” and
defendants “wasted eight months of litigation”);
Riviera Drilling & Exploration Co. v. Gunnison Energy
Corp., 412 Fed.Appx. 89, 93 (10th Cir. 2011)
(unpublished) (approving district ...