Burgess v. Utah State Prison
Filing
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MEMORANDUM DECISION & DISMISSAL ORDER. IT IS ORDERED that the petition is DISMISSED without prejudice. Signed by Judge Jill N. Parrish on 6/4/2019. (jds)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
WILLIAM RICHARD “DICK” BURGESS,
Petitioner,
MEMORANDUM DECISION &
DISMISSAL ORDER
v.
WARDEN LARRY BENZON,
Respondent.
Case No. 2:17-CV-1253-JNP
District Judge Jill N. Parrish
BACKGROUND
• December 5, 2017
Petitioner submitted federal habeas-corpus petition with in forma pauperis
motion. (Doc. Nos. 1 & 4.)
• December 13, 2017 Petitioner’s in forma pauperis motion granted. (Doc. No. 3.)
• November 30, 2018 State ordered to answer Petition. (Doc. No. 6.) Petitioner ordered to reply
to answer within thirty days of answer’s filing. (Id.)
• January 8, 2018
Respondent answered, filing Motion to Dismiss. (Doc. No. 8.)
• April 4, 2019
Petitioner ordered to within thirty days show cause why this action should
not be dismissed for failure to reply to State’s Motion to Dismiss. (Doc.
No. 9.)
Petitioner has not contacted the Court since February 26, 2018 (over fifteen 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
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& 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 prejudice to Respondent. 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 the docket here, the Court concludes that Petitioner's neglect prejudices
Respondent. Starting more than six months ago--on November 30, 2018--when Respondent was
ordered to answer, Respondent has defended this lawsuit in good faith. Respondent has adhered
to the Court’s order, (Doc. No. 6), to file a response, (Doc. No. 8). The Motion to Dismiss
thoroughly recites the facts and law, analyzes the issues, and provides seven relevant exhibits in
support. (Id.) This apparently took Respondent considerable time and resources--and for naught
as Petitioner has been completely unresponsive.
Respondent has wasted more than a half year of litigation since first ordered to answer.
To let the case proceed when Petitioner has not met his duties might make Respondent spend
more unnecessary time and money to defend a case that Petitioner seems to have no interest in
pursuing. This factor weighs toward dismissal. See Kalkhorst v. Medtronic, Inc., No. 18-cv-580-
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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.”); Oliver v. Wiley, No. 09-cv-441-PAB, 2010 U.S.
Dist. LEXIS 92836, at *5 (D. Colo. Aug. 18, 2010) (“Applicant’s failure to provide the Court
with a current address . . . and failure to keep abreast of his case has prejudiced Respondent, who
was forced to answer an Application that Applicant appears to have no intention of pursuing.
While arguably this prejudice is not ongoing, this factor weighs slightly in favor of dismissal.”).
Factor 2: Amount of interference with judicial process. In Jones, the Tenth Circuit
concluded that the plaintiff had significantly interfered with the judicial process when he did not
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 concluded 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
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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 [court] orders flouted the court’s
authority and interfered with the judicial process.” (Internal quotation marks & citation
omitted.)). “[F]ailure to respond to court orders cannot be ignored.” Davis, 571 F.3d at 1062.
Likewise here, this Court concludes Petitioner's failure to prosecute his case--i.e., failure
to comply with Court orders--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); Oliver v. Wiley, No. 09-cv-441-PAB, 2010 U.S. Dist. LEXIS 92836, at
*6 (D. Colo. Aug. 18, 2010) (holding petitioner’s failure to comply with rules and order to show
cause shows lack of respect for court, respondent, and judicial process, and concluding, if
petitioner’s case were not dismissed, court’s merits review of petition would unnecessarily
increase court’s workload and interfere with justice administration). Petitioner's failure to put
himself in a position to comply with court orders disrespects the Court and the judicial process.
His 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
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the workload of the Court and hijacked its attention from other matters with parties who 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, 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 Petitioner’s
failure to provide an updated address (if one exists) and to file a reply, as ordered, to the State’s
answer and the passage of time. 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”); 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) (holding plaintiff responsible for inability
to receive court filings based on not notifying court of correct address).
Earlier here, Petitioner showed ability to file a petition on his own. (Doc. No. 4.) His last
communication was when he filed a letter on October 24, 2018, in which he showed clear
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awareness of his duty to be responsive to the Court: “You asked me to get a six months worth of
my trust funds and here it is.” [Sic] (Doc. No. 5.) Still, more than fifteen months have now
passed since Petitioner’s last filing--with no further word at all. And Petitioner has neither
responded to Respondent’s Motion to Dismiss nor the Court’s Order to Show Cause, (Doc. Nos.
8 & 9), nor notified the Court whether he has changed his address. See Banks, 680 F. App’x at
724; see also Oliver, 2010 U.S. Dist. LEXIS 92836, at *6-7 (“Applicant has, without any
reasonable excuse, ignored [his duty to tell the Court of any address change]. Applicant has also
failed to show cause why his case should not be dismissed or provide any justification for his
failure to prosecute his case. Although Applicant’s pleadings are construed liberally because he
is proceeding pro se, he is not excused from his obligations to follow the same rules of procedure
that govern other litigants. Therefore, the Court concludes that Applicant is culpable for his
failure to follow the Local Rules and failure to litigate his case.” (Citation omitted.)).
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 the plaintiff that failure to comply could result in
dismissal. Faircloth, 2018 U.S. App. 36450, at *7. On appeal, when the 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 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 dismissal with prejudice for failure to
appear especially after litigant had been warned repeatedly of consequences).
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Here, the Court stated in its November 30, 2018 order, “Within thirty days after the
answer and proposed order are filed by Respondent(s), Petitioner must file any objections.” (Doc.
No. 6 (emphasis added).) And, in its April 4, 2019 Order to Show Cause, the Court warned that
Petitioner “must within thirty days show cause why his petition should not be dismissed because
he failed to reply to Respondent’s Motion to Dismiss.” (Doc. No. 9.) 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.
Another case upheld dismissal when, “given [plaintiff’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, “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 appeal, 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
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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 Petitioner is pro se, he is not excused of his neglect here. See
Green, 969 F.2d at 917. Second, Petitioner has neglected this case long enough that the Court
doubts monetary or evidentiary sanctions would be effective (even if such sanctions could be
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motivating for an indigent, pro se prisoner). This is because there is no way for the Court to even
know whether Petitioner 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; see also Oliver, 2010 U.S. Dist. LEXIS 92836, at *7-8 (“[B]ased upon
Applicant’s unknown location, the Court doubts that a monetary sanction would be practical or
effective. Further, Applicant’s conduct impacts both the judicial system and Respondent jointly,
and considering that Applicant has essentially neglected his case, the Court finds that no lesser
sanction would be effective.”).
CONCLUSION
Having comprehensively analyzed the Ehrenhaus factors against the timeline and
Petitioner’s lack of responsiveness here, the Court concludes that dismissal is appropriate.
IT IS THEREFORE ORDERED that the petition is DISMISSED without prejudice.
DATED June 4, 2019.
BY THE COURT:
JUDGE JILL N. PARRISH
United States District Court
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