United States District Court, D. Utah
JAMES C. NORMAN, Plaintiff,
STATE OF UTAH et al., Defendants.
MEMORANDUM DECISION AND ORDER DISMISSING
Waddoups United States District Judge.
August 18, 2017 Plaintiff submitted a pro se
prisoner civil-rights complaint, asserting federal civil
rights violated, starting in 2010. (ECF No. 3.)
October 20, 2017 As ordered, Plaintiff filed a prisoner
inmate-account statement. (ECF No. 4.)
November 27, 2017 As ordered, Plaintiff filed six-dollar
initial partial filing fee and consented to collection of
remaining balance of filing fee. (ECF No. 6.)
February 22, 2018 Plaintiff moved for service of his
complaint. (ECF No. 7.)
August 27, 2018 Court denied motion for service and entered
order to cure deficient complaint within thirty days. (ECF
Court has not heard from Plaintiff since February 22, 2018
(over fourteen months ago).
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).
The Court may dismiss actions sua sponte for failure
to prosecute. Olsen v. Mapes, 333 F.3d 1199, 1204,
n. 3 (10th Cir. 2003) (stating though Rule 41(b) requires
defendant file motion to dismiss, it has long been construed
to let courts dismiss actions sua sponte when
plaintiff fails to prosecute or comply with 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)
(recognizing dismissal for failure to prosecute as
“standard” way to clear “deadwood from the
courts' calendars” when prolonged and unexcused
delay by plaintiff).
“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
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)
(§ 1983 case), and “it is not necessary that a
claimant know all of the evidence ultimately relied
on for the cause of action to accrue.” Baker v. Bd.
of Regents of State of Kan., 991 F.2d 628, 632 (10th
Cir. 1993) (emphasis in original).
the four-year statute of limitations here, the Court
concludes that Plaintiff's claims probably would be
barred as untimely if refiled after dismissal.
Plaintiff's claims arise from alleged events occurring in
2010 and 2011. And it is now May 2019. Thus, a dismissal here
would likely operate as a dismissal with prejudice.
the dismissal is effectively with prejudice, this Court
applies the factors from Ehrenhaus v. Reynolds, 965
F.2d 916 (10th Cir. 1992)--namely, “(1) the degree of
actual prejudice to [Defendant]”; (2) “the amount
of interference with the judicial process”; (3) the
litigant's culpability; (4) whether the court warned the
noncomplying litigant that dismissal of the action was a
likely sanction; and (5) “the efficacy of lesser
sanctions.” Id. at 921 (internal quotation
marks omitted). Dismissal with prejudice is proper only when
these factors outweigh 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, ...