Jese v. Dennis

Filing 38

MEMORANDUM DECISION & DISMISSAL ORDER: It is therefore ordered that the complaint is DISMISSED without prejudice. This action is closed. Signed by Judge Ted Stewart on 02/04/2019. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
FRANK JESE,
Plaintiff,

MEMORANDUM DECISION &
DISMISSAL ORDER

v.
TIM DENNIS,

Case No. 2:16-CV-227-TS
Defendant.

District Judge Ted Stewart

BACKGROUND
• May 2, 2016

Plaintiff filed his prisoner civil-rights complaint, in which he asserted his
federal civil rights were violated, apparently for a short period starting on
about December 23, 2014. (Doc. No. 5.)

• February 13, 2017

Plaintiff filed a change of address. (Doc. No. 12.)

• February 15, 2017

The Court ordered service of process on Defendant Dennis. Defendant
was ordered to file in sequence an answer, a Martinez report, and a
dispositive motion. (Doc. No. 13.) The Order further stated, “If served
with a Martinez report, Plaintiff must submit a response within 30 days of
the motion’s filing date.” (Id. (emphasis added).)

• March 28, 2017

Defendant filed his answer. (Doc. No. 20.)

• May 1, 2017

Plaintiff filed a change of address. (Doc. No. 23.)

• June 23, 2017

Defendant filed a motion for hearing, instead of a Martinez report and
dispositive motion. (Doc. No. 24.)

• October 24, 2017

Having not received a response to Defendant’s motion for hearing, the
Court ordered Plaintiff to within thirty days respond to the motion. (Doc.
No. 26.)

• December 5, 2017

The Court’s October 24, 2017 Order was returned to the Court as
undeliverable, marked, “Not here.” (Doc. No. 27.) The Court Clerk’s note
on the docket shows that a clerk did a Utah Offender Search, saw Plaintiff
was in Washington County Jail and re-sent the Order to that address.
(Docket Entry No. 27.)

• December 27, 2017 Plaintiff responded to Defendant’s motion for hearing. (Doc. No. 29.)
• February 9, 2018

The Court denied Defendant’s motion for hearing and again ordered a
Martinez report and dispositive motion. (Doc. No. 30.)

• May 9, 2018

Defendant filed Martinez report. (Doc. No. 33.)

• June 1, 2018

Plaintiff filed response to Martinez report. (Doc. No. 35.)

• June 11, 2018

Defendant filed Motion for Summary Judgment. (Doc. No. 36.)

• July 11, 2018

Plaintiff’s response to Motion for Summary Judgment due.

• December 5, 2018

The Court ordered Plaintiff to within thirty days show cause why this
action should not be dismissed for failure to prosecute and file a response.
(Doc. No. 37.)

The Court has not heard from Plaintiff since June 1, 2018 (eight months ago).
ANALYSIS
Federal 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). This Court

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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 defendant file a motion
to dismiss, the Rule has long been interpreted to permit courts to dismiss actions sua sponte for a
plaintiff’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.”).
Generally, “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 dismissal.
“Utah’s 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

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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 F. App’x 661,
669 (2012) (section 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).
Applying the four-year statute of limitations to this case, the Court concludes Plaintiff’s
claims very well may be barred as untimely if refiled after dismissal. Plaintiff’s claims arise from
alleged events occurring on December 23, 2014 and a short while beyond: Defendant’s
inadequate medical care for Plaintiff’s arm injury. Aside from this pending lawsuit, the statute of
limitations appears to have expired in December 2018-January 2019. It is now past that time.
It seems that, if Plaintiff tried to refile these claims, they may be barred by the statute of
limitations. Thus, a dismissal here might operate as a dismissal with prejudice.
When the dismissal is with prejudice, this Court must apply the factors listed in
Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992)--namely, “(1) the degree of actual
prejudice to [Defendants]”; (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). A 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

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(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.”).
The Court now considers the factors here as follows:
Factor 1: Degree of actual prejudice to Defendant. 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 F. App’x 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 this case’s docket, the Court concludes that Plaintiff's neglect prejudices
Defendant. Starting nearly two years ago--on February 16, 2017--when the summons was
executed, Defendant has defended this lawsuit in good faith. He closely adhered to the Court’s
orders, (Doc. Nos. 13 & 30), to submit an answer, (Doc. No. 20), Martinez report, (Doc. No. 33),
and summary-judgment motion, (Doc. No. 36). The Martinez report and summary-judgment

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motions thoroughly recite the facts and law, analyze the issues, and provide seven relevant
exhibits with evidentiary support. (Doc. Nos. 33 & 36.) This all took considerable time and
resources from Defendant--and all for naught as Plaintiff has been unresponsive to the summaryjudgment motion. Defendant has wasted nearly two years of litigation since he was first served.
To let the case proceed when Plaintiff has not met his obligations might require Defendant to
spend more unnecessary time and money to defend a case that Plaintiff seems to have no interest
in pursuing. This factor weighs toward dismissal. See Kalkhorst v. Medtronic, Inc., No. 18-cv580-KLM, 2018 U.S. Dist. LEXIS 215598, at *8 (D. Colo. Dec. 19, 2018); see also Tolefree v.
Amerigroup Kan., Inc., No. 18-2032-CM-TJJ, 2018 U.S. Dist. LEXIS 195448, at *5 (D. Kan.
Nov. 15, 2018) (“Defendants have had plaintiff's allegations pending in an open court case for
nearly ten months, with no end in sight. Plaintiff, on the other hand, has shown little interest in
pursuing her claims or following court orders.”).
Factor 2: Amount of interference with the judicial process. In Jones, the Tenth Circuit
concluded that Plaintiff had significantly interfered with the judicial process when he failed to
answer a show-cause order or join a telephone conference. Jones, 996 F.2d at 265. Though Jones
later argued that the district court could have abated the suit and revisited the status in three to
six months, the court noted that abeyance would have delayed the proceedings for the other
parties and the court. Id. The court said, “In similar circumstances, we have held that a district
court could find interference with the judicial process when the plaintiff ‘repeatedly ignore[s]
court orders and thereby hinder[s] the court’s management of its docket and its efforts to avoid
unnecessary burdens on the court and the opposing party.’” Id. (citation omitted).

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Meanwhile, in Villecco, the Tenth Circuit determined that the plaintiff had “caused great
interference with the judicial process by failing to provide the court with a current mailing
address or an address that he regularly checked; respond to discovery requests; appear at his
deposition; list any fact witnesses or otherwise comply with the court's Initial Pretrial Order, or
respond to the Defendants' Motion to Dismiss.” Villeco v. Vail Resorts, Inc., 707 F. App’x 531,
533 (10th Cir. 2017); see also Banks v. Katzenmeyer, 680 F. App’x 721, 724 (10th Cir. 2017)
(unpublished) (“[H]e did not (1) respond to the order to show cause or (2) notify the court of his
change of address as required by the local rules, even though his past actions show he was aware
of the requirement.”); Taylor v. Safeway, Inc., 116 F. App’x 976, 977 (10th Cir. 2004)
(dismissing under Ehrenhaus when “judicial process essentially ground to a halt when [Plaintiff]
refused to respond to either the defendant[s’ filings] or the district court’s orders”); Killen v.
Reed & Carnick, No. 95-4196, 1997 U.S. App. LEXIS 430, at *4 (10th Cir. Jan. 9, 1997)
(unpublished) (“Plaintiff’s willful failure to comply with the orders of the district court flouted
the court’s authority and interfered with the judicial process.” (Internal quotation marks and
citation omitted.)). “[F]ailure to respond to court orders cannot be ignored.” Davis v. Miller, 571
F.3d 1058, 1062 (10th Cir. 2009).
Likewise here, this Court determines that Plaintiff's failure to prosecute his case, and
specifically his failure to comply with Court Orders, necessarily interferes with the effective
administration of justice. The issue here "is respect for the judicial process and the law." See
Cosby v. Meadors, 351 F.3d 1324, 1326-27 (10th Cir. 2003). Plaintiff's failure to put himself in a
position to comply with court orders disrespects the Court and the judicial process. Plaintiff's
neglect has caused the Court and staff to spend unnecessary time and effort. The Court's frequent

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review of the docket and preparation of orders to move this case along have increased the
workload of the Court and take its attention away from other matters in which parties have met
their obligations and are deserving of prompt resolution of their issues. "This order is a perfect
example, demonstrating the substantial time and expense required to perform the legal research,
analysis, and writing to craft this document." Lynn v. Roberts, No. 01-cv-3422-MLB, 2006 U.S.
Dist. LEXIS 72562, 2006 WL 2850273, at *7 (D. Kan. Oct. 4, 2006).
This factor also weighs toward dismissal. See Kalkhorst, 2018 U.S. Dist. LEXIS 215598,
at *8-9; see also Estate of Strong v. City of Northglen, No. 1:17-cv-1276-WJM-SKC, 2018 U.S.
Dist. LEXIS 211095, at *10 (D. Colo. Dec. 14, 2018) (report & recommendation) (“It is hard to
fathom how failing to respond to orders of the federal district court would not interfere with the
judicial process.” (Emphasis in original.)).
Factor 3: Litigant’s culpability. Evidence of culpability may be drawn from Plaintiff’s
failure to provide an updated address and to respond to Defendant’s summary-judgment motion.
See Villecco, 707 F. App’x at 534 (10th Cir. 2017); see also Faircloth, 2018 U.S. App. 36450, at
*6 (finding culpability when plaintiff “had been solely responsible for his failure to update his
address, to respond to the show-cause order”); Theede v. U.S. Dep’t of Labor, 172 F.3d 1262,
1265 (10th Cir. 1999) (stating plaintiff bore responsibility for inability to receive court filings
based on his failure to notify court of correct address); Stanko v. Davis, 335 F. App’x 744, 747
(10th Cir. 2009) (unpublished) (“For at least seven months, Stanko failed to follow this order.
The district court ordered Stanko to show cause for this failure. Stanko made no effort to explain
his failure regarding those seven months.”).

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Earlier in this case, Plaintiff showed ability to file a complaint on his own, respond to
Court orders, and understand the need to communicate his current address. (Doc. Nos. 5, 9, 10,
12, 23, 29 & 35.) Because the last time Plaintiff communicated with the Court was on June 1,
2018, when he filed a response to Defendant’s Martinez report, he was clearly aware of the
Court’s Orders on February 16, 2017 and February 9, 2018, in which the Court ordered service
of process on Defendant; Defendant to answer; Defendant to file a Martinez report; Defendant to
file a dispositive motion; and Plaintiff to respond to the dispositive motion. (Doc. Nos. 13 & 30.)
Still, eight months have passed since Defendant’s summary-judgment motion was filed, with no
response or any word at all from Plaintiff. And Plaintiff has not responded to the order to show
cause or notified the Court whether he has again changed his address, though his past actions
show he knew that he should. See Banks, 680 F. App’x at 724.
This factor weighs in favor of dismissal.
Factor 4: Whether the court warned the noncomplying litigant that dismissal of the action
was a likely sanction. In Faircloth, the court twice warned the plaintiff that failure to comply
could result in a dismissal. Faircloth, 2018 U.S. App. 36450, at *7. On appeal, when the plaintiff
argued that he did not receive these warnings, the Tenth Circuit stated, “But he could have
received the warnings had he complied with the local rule requiring him to update his address.
Because he did not, the court's only option was to mail documents to him at his last known
address. These mailings constituted effective service [under Fed. R. Civ. P. 5(b)(2)(C)].” Id; see
also O’Neil v. Burton Grp., 559 F. App’x 719, 722 (10th Cir. 2014) (unpublished) (supporting
district court’s decision to dismiss with prejudice for failure to appear “especially after the party
has been warned repeatedly about the consequences of such a failure”).

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Here, the Court stated in its February 15, 2017 and February 9, 2018 orders that “[i]f
served with a summary-judgment motion . . . Plaintiff must submit a response within 30 days of
the motion’s filing date.” (Doc. Nos. 13 & 30 (emphasis added).) And, in its December 5, 2018
Order to Show Cause, the Court warned that without a response within thirty days Plaintiff’s
case would “be dismissed for failure to prosecute and failure to file a response.” (Doc. No. 37.)
There can be no mistaking the Court’s intentions.
Factor 5: Efficacy of lesser sanctions. Also in Faircloth, the district court had decided
that no lesser sanction than dismissal could be effective when “[t]he court had been unable to
receive a response from Mr. Faircloth and had no way of learning where Mr. Faircloth was or
when he would disclose his new address.” Faircloth, 2018 U.S. App. 36450, at *7-8. Due to this
uncertainty, “the court reasonably concluded that dismissal was necessary.” Id.
Likewise in Villeco, the Tenth Circuit approved dismissal when, “given Villecco's failure
to communicate, to respond to any notices or the Motion to Dismiss, or to comply with any
deadlines, the [district] court found no lesser sanction than dismissal would be effective.”
Villecco, 707 F. App’x at 533. The court noted that “[a] lesser sanction would be ineffective
because a stay would not have a ‘real impact on [Plaintiff] in encouraging responsiveness.’” Id.
at 535; see also O’Neil v. Burton Grp., 559 F. App’x 719, 722 (10th Cir. 2014) (unpublished)
(“[S]imply because lesser sanctions were available does not mean that the court was obligated to
apply them.”).
In yet another case, the Tenth Circuit states that though “dismissal should be imposed
only after careful exercise of judicial discretion," it
is an appropriate disposition against a party who disregards court
orders and fails to proceed as required by court rules. . . . Dismissal

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of the [case] is a strong sanction to be sure, but it is no trifling
matter for [a party] to abuse our office by disappearing and failing
to meet our deadlines. The federal courts are not a playground for
the petulant or absent-minded; our rules and orders exist, in part, to
ensure that the administration of justice occurs in a manner that
most efficiently utilizes limited judicial resources.
United States ex rel. Jimenez v. Health Net, Inc., 400 F.3d 853, 855, 856 (10th Cir. 2005).
It is true that, for a pro se party, “the court should carefully assess whether it might . . .
impose some sanction other than dismissal, so that the party does not unknowingly lose its right
of access to the courts because of a technical violation.” Ehrenhaus, 965 F.2d at 920 n.3; see also
Callahan v. Commun. Graphics, Inc., 657 F. App’x 739, 743 (10th Cir. 2016) (unpublished)
(“’The Court has been beyond lenient with Plaintiff throughout these proceedings based on his
pro se status.’”) (Citation omitted.)). On the other hand, “[m]onetary sanctions are meaningless
to a plaintiff who has been allowed to proceed in forma pauperis”). Smith v. McKune, 345 F.
App’x 317, 320 (10th Cir. 2009) (unpublished); cf. Riviera Drilling & Exploration Co. v.
Gunnison Energy Corp., 412 F. App’x 89, 93 (10th Cir. 2011) (unpublished) (“Because Riviera
had filed for bankruptcy, a financial sanction was out of the question.”).
Again, dismissal is a drastic sanction, but the Tenth Circuit has “repeatedly upheld
dismissals in situations where the parties themselves neglected their cases or refused to obey
court orders.” Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). Dismissal is warranted
when there is a persistent failure to prosecute the complaint. See Meade v. Grubbs, 841 F.2d
1512, 1518 n.6, 1521-22 (10th Cir. 1988).
Applying these principles here, the Court concludes that no sanction less than dismissal
would be effective. First, though Plaintiff is pro se, he is not excused of his neglect here. See
Green, 969 F.2d at 917. Second, Plaintiff has neglected this case so thoroughly that the Court

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doubts monetary or evidentiary sanctions would be effective (even if such sanctions could be
motivating for an indigent, pro se prisoner). This is because there is no way for the Court to even
know whether Plaintiff is receiving its orders. “It is apparent that Plaintiff is no longer interested
in and/or capable of prosecuting his claims. Under these circumstances, no lesser sanction is
warranted and dismissal is the appropriate result.” Kalkhorst, 2018 U.S. Dist. LEXIS 215598, at
*12-13.
CONCLUSION
Having comprehensively analyzed the Ehrenhaus factors against the timeline and
Plaintiff’s lack of responsiveness here, the Court concludes that dismissal is appropriate.
IT IS THEREFORE ORDERED that the complaint is DISMISSED without prejudice.
This action is CLOSED.
DATED this 4th day of February, 2019.
BY THE COURT:

JUDGE TED STEWART
United States District Court

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