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Richard v. Benzon

United States District Court, D. Utah

June 4, 2019

WILLIAM RICHARD “DICK” BURGESS, Petitioner,
v.
WARDEN LARRY BENZON, Respondent.

          MEMORANDUM DECISION & DISMISSAL ORDER

          JILL N. PARRISH JUDGE UNITED STATES DISTRICT COURT

         BACKGROUND

         • December 5, 2017 Petitioner submitted federal habeas-corpus petition with in forma pauperis motion. (Doc. Nos. 1 & 4.)

         • December 13, 2017 Petitioner's in forma pauperis motion granted. (Doc. No. 3.)

         • November 30, 2018 State ordered to answer Petition. (Doc. No. 6.) Petitioner ordered to reply to answer within thirty days of answer's filing. (Id.)

         • January 8, 2018 Respondent answered, filing Motion to Dismiss. (Doc. No. 8.)

         • April 4, 2019 Petitioner ordered to within thirty days show cause why this action should not be dismissed for failure to reply to State's Motion to Dismiss. (Doc. No. 9.)

         Petitioner has not contacted the Court since February 26, 2018 (over fifteen 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.”).

         In 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.”).

         Factor 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 court's observation that “delay would ‘prolong for the defendants the substantial uncertainty faced by all parties pending litigation'”) (citation omitted).

         Reviewing the docket here, the Court concludes that Petitioner's neglect prejudices Respondent. Starting more than six months ago--on November 30, 2018--when Respondent was ordered to answer, Respondent has defended this lawsuit in good faith. Respondent has adhered to the Court's order, (Doc. No. 6), to file a response, (Doc. No. 8). The Motion to Dismiss thoroughly recites the facts and law, analyzes the issues, and provides seven relevant exhibits in support. (I ...


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