Cromar v. Davis County Correctional Facility

UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
PAUL KENNETH CROMAR,
Petitioner,
v.
DAVIS COUNTY CORR. FACILITY,
Respondent.
MEMORANDUM DECISION
& DISMISSAL ORDER
Case No. 1:24-cv-00064 DBB
District Judge David Barlow
BACKGROUND
On April 25, 2024, Petitioner filed a federal habeas-corpus petition, 28 U.S.C.S. § 2254
(2025). (ECF No. 1.) On October 3, 2025, Respondent filed a motion to dismiss. (ECF No. 14.)
When Petitioner did not respond, the court gave him “thirty days in which to SHOW CAUSE
why the petition should not be dismissed for Petitioner’s failure to (a) file the required reply to
Respondent’s Motion to Dismiss and (b) prosecute this action.” (ECF No. 15.) That Order was
returned to sender, marked, “NO LONGER AT THIS ADDRESS” and “UNABLE TO
FORWARD.” (ECF No. 16.) On December 5, 2025, a docket entry was made stating that
Petitioner’s new address was discovered to be at the federal facility in Florence, Colorado, and
so the order to show cause was remailed to that address. (ECF Nos. 15–16.) Nearly two months
later, Petitioner still has not been heard from.
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
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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), namely, “(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
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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.”).
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, who has spent time defending this lawsuit. Respondent’s eight-page Motion to
Dismiss thoroughly recites the facts and law, analyzes the issues, and provides seven exhibits in
support. (ECF No. 14.) The Motion to Dismiss apparently took Respondent time and resources—
and for naught as Petitioner has been unresponsive to the Motion to Dismiss.
Including preparing its responsive pleading and exhibits, Respondent has wasted about
seven months of litigation. To let the case proceed, when Petitioner has not met Petitioner’s duty,
may make Respondent spend more unnecessary time and money to defend a case that Petitioner
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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 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
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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 [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 this case--i.e., by
not heeding court orders to respond to Respondent’s Motion to Dismiss--necessarily interferes
with effective administration of justice. (ECF Nos. 7, 14–15.) 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, 2010 U.S. Dist. LEXIS 92836, at *6 (holding petitioner’s noncompliance 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 judicial process.
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Petitioner’s neglect has caused the court and staff to spend unnecessary time and effort. The
court’s 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 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 respond to Petitioner’s Motion to Dismiss and court orders, (ECF Nos. 7, 14–15), 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).
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Earlier here, Petitioner showed ability to initiate this litigation. (ECF No. 1.) He is also
required both by rule and by court order to notify the court of any address change. See D. Utah
Civ. R. 83-1.6(b) and ECF No. 7 at 2. Still, nearly eighteen months have now passed since
Petitioner’s last filing—with no further word at all. And Petitioner has responded neither to the
Motion to Dismiss nor Order to Show Cause, (ECF Nos. 7, 14–15), as required. 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 update his address]. Petitioner has also failed to show
cause why this case should not be dismissed or provide any justification for his failure to
prosecute his case. Although Petitioner’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 Petitioner 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 June 20, 2025 order, “Within thirty days after the answer is
filed, Petitioner must file a reply or risk dismissal.” (ECF No. 7.) Another order in this case
provides a similar warning. (ECF No. 15.) 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
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).
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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
be effective. First, though Petitioner is pro se, Petitioner is not excused of neglect. See
Green, 969 F.2d at 917. Second, Petitioner has ignored this case long enough that it is doubtful
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;
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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, the court concludes that dismissal is appropriate.
IT IS THEREFORE ORDERED that:
(1) The petition is DISMISSED without prejudice.
(2) A certificate of appealability is DENIED.
DATED this 3rd day of February, 2026.
BY THE COURT:
JUDGE DAVID BARLOW
United States District Court
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