Banks v. Katzenmeyer , 680 F. App'x 721 ( 2017 )


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  •                                                                                  FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                         Tenth Circuit
    FOR THE TENTH CIRCUIT                           March 1, 2017
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    TORREY V. BANKS,
    Plaintiff - Appellant,
    v.                                                          No. 16-1276
    (D.C. No. 1:13-CV-02599-KLM)
    CAPTAIN KATZENMEYER,                                         (D. Colo.)
    Defendant - Appellee.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before MATHESON, BALDOCK, and MORITZ, Circuit Judges.
    _________________________________
    Torrey V. Banks, proceeding pro se, appeals the district court’s order
    dismissing his 
    42 U.S.C. § 1983
     action against Captain Katzenmeyer for failure to
    prosecute. The district court’s dismissal was without prejudice, but we have
    jurisdiction under 
    28 U.S.C. § 1291
     because the order of dismissal effectively closed
    the case. See Amazon, Inc. v. Dirt Camp, Inc., 
    273 F.3d 1271
    , 1275 (10th Cir. 2001)
    (“Although a dismissal without prejudice is usually not a final decision, where the
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously to honor the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral
    estoppel. It may be cited, however, for its persuasive value consistent with
    Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    dismissal finally disposes of the case so that it is not subject to further proceedings in
    federal court, the dismissal is final and appealable.”). We affirm.
    I.     Background
    While Banks was a prisoner in the custody of the Colorado Department of
    Corrections (CDOC), he filed a pro se civil rights action under § 1983, alleging that
    dozens of CDOC’s employees violated his constitutional rights in a multitude of
    ways. The district court dismissed all claims against all parties. Banks then secured
    counsel and appealed the dismissal of only one claim: his First Amendment claim
    that Katzenmeyer and two other corrections officers retaliated against him for filing
    prison grievances. In case number 15-1091, this court reversed and remanded with
    respect to the retaliation claim against Katzenmeyer but affirmed as to the remaining
    defendants. Banks v. Katzenmeyer, 645 F. App’x 770, 774 (10th Cir. 2016).
    On remand, the district court was unable to contact Banks to apprise him of
    deadlines and upcoming proceedings because he failed to update his address as
    required by the local rules of practice. See D.C.COLO.LCivR 5.1(c);
    D.C.COLO.LAttyR 5(c). Thus, court mailings were returned as undeliverable. And
    Banks himself did not contact the district court or otherwise pursue his remaining
    claim. Consequently, the district court issued an order to show cause—noting its
    lack of formal or informal contact with Banks for close to a year and directing him to
    show cause why the case should not be dismissed for failure to prosecute or, in the
    alternative, to file a written notice of address change. When Banks failed to respond
    by the designated deadline, the district court concluded he had abandoned his lawsuit
    2
    and dismissed the claim without prejudice for failure to prosecute. In so doing, the
    district court cited Fed. R. Civ. P. 41(b) and applied the pertinent factors under our
    caselaw.
    II.    Analysis
    Banks now asks us to reverse the district court’s dismissal order in the
    interests of justice. He argues that his appellate lawyer provided negligent
    representation because he was supposed to serve as Banks’s attorney at all stages of
    the litigation and only advised him of his inability to represent him on remand after
    the deadline to respond to the show-cause order. According to Banks, these
    circumstances constitute excusable neglect.
    Because Banks is proceeding pro se, “we construe his pleadings liberally.”
    Ledbetter v. City of Topeka, 
    318 F.3d 1183
    , 1187 (10th Cir. 2003). We make some
    allowances for deficiencies, such as unfamiliarity with pleading requirements, failure
    to cite appropriate legal authority, and confusion of legal theories. See Garrett v.
    Selby Connor Maddux & Janer, 
    425 F.3d 836
    , 840 (10th Cir. 2005). But we “cannot
    take on the responsibility of serving as [his] attorney in constructing arguments and
    searching the record.” 
    Id.
    Banks has not satisfied the highly deferential standard that applies here. “We
    review an order of dismissal for failure to prosecute under an abuse-of-discretion
    standard.” Rogers v. Andrus Transp. Servs., 
    502 F.3d 1147
    , 1152 (10th Cir. 2007).
    A district court abuses its discretion if it “makes a clear error of judgment or exceeds
    the bounds of permissible choice in the circumstances.” Ecclesiastes 9:10-11-12,
    3
    Inc. v. LMC Holding Co., 
    497 F.3d 1135
    , 1143 (10th Cir. 2007) (alterations and
    internal quotation marks omitted). Whether a dismissal is justified depends on the
    procedural history of a case. Rogers, 
    502 F.3d at 1152
    . “A district court
    undoubtedly has discretion to sanction a party for failing to prosecute . . . a case, or
    for failing to comply with local or federal procedural rules.” AdvantEdge Bus. Grp.
    v. Thomas E. Mestmaker & Assocs., 
    552 F.3d 1233
    , 1236 (10th Cir. 2009) (internal
    quotation marks omitted).
    The dismissal here was well within the district court’s authority. Federal Rule
    of Civil Procedure 41(b) authorizes the involuntary dismissal of an action “[i]f the
    plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure]
    or a court order.” Fed. R. Civ. P. 41(b). Courts can 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 the rules of civil procedure
    or court[s’] orders.”). If the dismissal is with prejudice, the district court must apply
    the factors we listed in Ehrenhaus v. Reynolds, 
    965 F.2d 916
     (10th Cir. 1992)—
    namely, “(1) the degree of actual prejudice to the 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
    4
    marks omitted). But if the dismissal is without prejudice, such an analysis is not
    necessary. See AdvantEdge, 
    552 F.3d at 1236
    .
    “[T]he need to prosecute one’s claim (or face dismissal) is a fundamental
    precept of modern litigation . . . .” Rogers, 
    502 F.3d at 1152
    . The district court went
    to great lengths to articulate the ways in which Banks failed to comply with this
    precept. It explained that he 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. In addition, it did
    more than is required for a dismissal without prejudice when it recited and applied
    the Ehrenhaus factors.
    Furthermore, the record does not support Banks’s contention that his appellate
    attorney agreed to represent him on remand; to the contrary, the fee agreement
    submitted to the district court, on its face, covers only his civil appeal in case number
    15-1091 and explains that a separate fee agreement is required should the client
    require representation on other cases. Regardless, the appellate attorney sent a letter
    confirming he was not going to represent Banks on remand seventeen days before the
    district court issued its dismissal order and a month before final judgment was
    entered. Yet Banks did not contact the court to explain his situation or otherwise
    pursue his § 1983 claim during that time frame.
    5
    III.   Conclusion
    Under these circumstances, the district court did not abuse its discretion in
    dismissing Banks’s claim without prejudice. We therefore affirm the dismissal order.
    Banks’s motion for leave to proceed without prepayment of costs and fees is granted.
    Entered for the Court
    Bobby R. Baldock
    Circuit Judge
    6