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Terry v. State

United States District Court, D. Utah

January 6, 2020

RICHARD STEPHEN TERRY, Petitioner,
v.
STATE OF UTAH, Respondent.

          MEMORANDUM DECISION & DISMISSAL ORDER

          Clark Waddoups District Judge

         BACKGROUND

• June 18, 2018 Petitioner submitted federal habeas-corpus petition. (Doc. Nos. 1-3.)
• September 20, 2018 Addendum to petition and affidavit in support filed. (Doc. Nos. 5-6.)
• April 26, 2019 Petitioner's motion for appointed counsel denied and motion for service of process granted. (Doc. No. 9.) Respondent ordered to answer Petition within forty-five days and Petitioner ordered to respond to answer within thirty days of answer's filing. (Id.)
• May 8, 2019 Renewed motion to appoint counsel filed. (Doc. No. 10.)
• July 22, 2019 Mail sent to Petitioner returned as undeliverable. (Doc. No. 16.)
• September 9, 2019 Respondent's Motion to Dismiss filed. (Doc. No. 19.)
• October 25, 2019 Petitioner ordered to within thirty days show cause why action should not be dismissed for failure to respond to Motion to Dismiss. (Doc. No. 20.)

         Petitioner has not contacted the Court since he filed his motion on May 8, 2019 (more than seven 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 ...


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