# Martinez v. Brown

> District Court, D. Utah · June 29, 2022

URL: https://www.frixlaw.com/law-library/cases/10685495

## Case

- **Court:** District Court, D. Utah
- **Decided:** June 29, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10685495

## How later opinions describe it (automated extraction)

- stating plaintiff at fault for inability to receive court filings based on failure to notify court of correct address
- concluding substantial prejudice when plaintiff “sparked months of litigation” and defendants “wasted eight months of litigation”
- recognizing dismissal for failure to prosecute as “standard” way to clear “deadwood from the courts’ calendars” when prolonged and unexcused delay by plaintiff

## Opinion text

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH

REYNALDO THOMAS MARTINEZ,
MEMORANDUM DECISION
Plaintiff, & DISMISSAL ORDER

v.
Case No. 2:19-CV-254-TC
RICK BROWN et al.,
District Judge Tena Campbell
Defendants.

Plaintiff’s action is dismissed for failure to prosecute.
BACKGROUND
On April 16, 2019, Plaintiff submitted a federal civil-rights complaint, 42 U.S.C.S. §
1983 (2022), proceeding in forma pauperis. (ECF Nos. 1, 3, 4-8, 11-19.) Throughout nearly
three years, Plaintiff filed documents seeking to advance this litigation. (ECF Nos. 20, 39, 46.)
Meanwhile, Defendants waived service, and filed answers, a Martinez report (with fifteen
exhibits) and a summary-judgment motion (on February 11, 2022). (ECF Nos. 24, 26-30, 32-34,
41-44, 48.) Petitioner's reply was due thirty days later. The reply has never been filed; and
Plaintiff was last directly1 heard from in this case on February 9, 2022--more than four months
ago--when he filed a motion for time extension that was granted. (ECF Nos. 46, 47.)

1 Partial filing fees have been paid from Plaintiff’s institutional account. (ECF Nos. 50-53.) However, these
payments are not directly triggered by Plaintiff, but generated automatically, under his consent-to-collection form,
filed November 4, 2019, (ECF No. 16), and would continue to be paid under the language of that form whether the
case was open or closed.
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 to file motion to dismiss, the
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, 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
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 Defendants. 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 Plaintiff's neglect prejudices
Defendants, who have spent significant time defending this lawsuit. Defendants have adhered to
the Court's Order, (ECF No. 24), to file responsive pleadings, (ECF Nos. 24, 26-30, 32-34, 41-
44, 48). The Martinez report and summary-judgment motion thoroughly recite the facts and law,
analyze the issues, and provide relevant exhibits in support. (Id.) This apparently took
Defendants considerable time and resources--and for naught as Plaintiff has been unresponsive.
Including preparing its Martinez report, exhibits, and summary-judgment motion,
Defendants have wasted more than eight months of litigation. To let the case proceed, when
Plaintiff has not met his duty, may force Defendants 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-cv-580-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 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
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--by not responding to the Court’s
order to show cause and respond to the summary-judgment motion--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 Court’s
workload and diverted its attention from other matters in which parties have met their duties 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-580-
KLM, 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
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. 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. (ECF Nos. 1-2, 4-5, 7-10, 12-14, 16-17, 19-20, 39, 46.) Still, more than four months have
now passed since the Court has directly heard from Plaintiff.

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 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, on April 19, 2022, the Court ordered Plaintiff to within thirty days "SHOW
CAUSE why this case should not be dismissed for failure to file a response and to prosecute this
case." (ECF No. 49.) Other orders in this case also reflected the Court’s warning that failure to
comply with orders would result in case dismissal. (ECF Nos. 3, 6, 11, 15, 18.)
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.”).
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).
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 again concludes that dismissal is appropriate.
IT IS THEREFORE ORDERED that this action is DISMISSED with prejudice.
DATED this 29th day of June, 2022.
BY THE COURT:

JUDGE TENA CAMPBELL
United States District Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10685495. Public record. Not legal advice.