United States District Court, D. Utah
MEMORANDUM DECISION & DISMISSAL ORDER
Waddoups District Judge
• 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.)
has not contacted the Court since he filed his motion on May
8, 2019 (more than seven months ago).
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 ...