Daniels v. Utah State Prison et al

Filing 16

MEMORANDUM DECISION & DISMISSAL ORDER: It is ordered that the complaint is DISMISSED with prejudice. See order for details. Signed by Judge Tena Campbell on 10/29/2019. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JEFFREY J. DANIELS,
Plaintiff,

MEMORANDUM DECISION &
DISMISSAL ORDER

v.
UTAH STATE PRISON et al.,
Defendants.

Case No. 2:16-CV-1229-TC
District Judge Tena Campbell

BACKGROUND
• December 20, 2016 Order entered granting in forma pauperis application and Complaint filed.
(Doc. Nos. 1-3.)
• 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.)

The Court has not heard directly from Plaintiff since June 25, 2019 (more than four
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). 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).
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). 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.
When 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

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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.”).
The Court now considers the factors 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).

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Reviewing this case’s docket, the Court concludes that Plaintiff's neglect does not overtly
prejudice Defendants, except that, in general, passage of time can weaken evidentiary support for
a position.
Factor 2: Amount of interference with 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).
Meanwhile, in Villecco, the Tenth Circuit determined that plaintiff greatly interfered
“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

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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, Plaintiff's failure to prosecute this case--and specific failure to comply
with two orders requiring him to timely file an amended complaint, (Doc. Nos. 13 & 15)-necessarily interferes with 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 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 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 deserve 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, at *7 (D. Kan. Oct. 4, 2006).
This factor weighs toward dismissal. See Kalkhorst v. Medtronic, Inc., No. 18-cv-580KLM, 2018 U.S. Dist. LEXIS 215598, at *8-9 (D. Colo. Dec. 19, 2019); 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

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respond to orders of the federal district court would not interfere with the judicial process.”
(Emphasis in original.)).
Factor 3: Litigant’s culpability. Proof of culpability may be drawn from Plaintiff’s failure
to be in touch with the Court for long stretches and to substantively respond to the Court’s orders
to file an amended complaint. See Villecco, 707 F. App’x at 534; see also Faircloth, 2018 U.S.
App. 36450, at *6 (finding culpability when plaintiff solely responsible for not updating address
and responding to show-cause order); 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.”); Theede v. U.S. Dep’t of Labor, 172 F.3d 1262, 1265 (10th Cir.
1999) (stating plaintiff at fault for inability to receive court filings based on failure to notify court
of correct address).
Earlier in this case, Plaintiff showed ability to file a complaint and respond to Court
orders. (Doc. Nos. 3, 6, 8, 11, 12 & 14.) Still, six months have passed since the Court required an
amended complaint. (Doc. No. 32.) And Plaintiff has not met that requirement, though past
actions indicate that Plaintiff knows to obey orders. See Banks, 680 F. App’x at 724.
This factor weighs in favor of dismissal.
Factor 4: Whether Court warned noncomplying litigant that dismissal was likely sanction.
In Faircloth, the court twice warned plaintiff that failure to comply could result in dismissal.
Faircloth, 2018 U.S. App. 36450, at *7. On appeal, when plaintiff argued he did not get 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

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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) (affirming dismissal with prejudice for failure to
appear especially after party was repeatedly warned of consequences).
Here, the Court said on April 29, 2019, “If Plaintiff fails to timely cure the above
deficiencies according to this Order’s instructions, this action will be dismissed without further
notice.” (Doc. No. 13, at 6.) On July 8, 2019, the Court said, “Plaintiff must within thirty days
SHOW CAUSE why the Complaint should not be dismissed because he failed to cure the
Complaint’s deficiencies noted above.” (Doc. No. 15, at 7.) 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.
And in Villeco, dismissal was approved 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 Tenth Circuit said 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.”).

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In yet another case, the Tenth Circuit stated 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
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).

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Applying these principles, the Court concludes that no sanction less than dismissal would
work here. First, though Plaintiff is pro se, he is not excused from neglect. See Green, 969 F.2d
at 917. Second, Plaintiff has neglected this case so thoroughly that the Court doubts monetary or
evidentiary sanctions would be effective (even if such sanctions could be motivating for an
indigent, pro se prisoner). “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 with prejudice.
DATED this 29th day of October, 2019.
BY THE COURT:

JUDGE TENA CAMPBELL
United States District Court

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