United States District Court, D. Utah
JEFFREY J. DANIELS, Plaintiff,
UTAH STATE PRISON et al., Defendants.
MEMORANDUM DECISION & DISMISSAL ORDER
December 20, 2016 Order entered granting in forma
pauperis application and Complaint filed. (Doc. Nos.
April 3, 2017 Order to Show Cause entered requiring Plaintiff
to file his consent to collection of his filing fee or face
dismissal. (Doc. No. 9.)
April 24, 2017 Consent to collection filed. (Doc. No. 12.)
April 29, 2019 Order entered requiring Plaintiff to within
thirty days cure deficient complaint. (Doc. No. 13.)
June 25, 2019 Plaintiff's motion for appointed counsel
filed. (Doc. No. 14.)
July 8, 2019 Order to Show Cause entered, in which Court
denied motion for appointed counsel and again required
amended complaint be filed to cure Complaint's
deficiencies. (Doc. No. 15.)
Court has not heard directly from Plaintiff since June 25,
2019 (more than four 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, Rule 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). For purposes of this Order
only, because Plaintiff has not specified dates of alleged
constitutional violations, the Court assumes the statute of
limitations has expired on Plaintiff's claims if he were
to refile them after dismissal.
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, ...