Davis v. Miller

571 F.3d 1058

Alvin Leslie DAVIS, Jr., Petitioner-Appellant, v. David C. MILLER, Warden of the Lawton Correctional Facility, Respondent-Appellee.

No. 07-7062.

United States Court of Appeals, Tenth Circuit.

July 7, 2009.

Steven M. Presson of Presson Law Office, Norman, OK, for Petitioner-Appellant.

W.A. Drew Edmondson, Attorney General, and Keeley L. Harris, Assistant Attorney General, State of Oklahoma, Oklahoma City, OK, for Respondent-Appellee.

Before TACHA, HOLLOWAY, and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Alvin Leslie Davis, Jr., appeals the district court's sua sponte dismissal of his 28 U.S.C. § 2254 petition for habeas corpus relief. We granted a certificate of appealability to decide whether the court abused its discretion in dismissing his petition under Federal Rules Civil Procedure 41(b) for failure to comply with the court's orders. We reverse and remand.

I.

Mr. Davis was tried and sentenced in the district court of McIntosh County, Oklahoma. His first trial ended in a hung jury; at the second trial, he was found guilty of first degree murder and sentenced to life without the possibility of parole. Mr. Davis's direct appeal to the Oklahoma Court of Criminal Appeals was denied, and his conviction became final on December 5, 2005. On December 4, 2006, Mr. Davis filed a timely § 2254 petition in federal district court through counsel, raising nine constitutional claims. This fifty-five page document was styled as a "preliminary petition," indicating that counsel filed it to meet the one-year statute of limitations under § 2254(d)(1)(A) and that he planned to amend the petition. A copy of this petition was served on respondent.

Upon receiving Mr. Davis's "preliminary" petition, the district court ordered him to file an amended petition by December 26, 2006. The court subsequently granted his motion for an enlargement of time and extended the deadline to February 22, 2007. Mr. Davis failed to file an amended petition by that date, and on March 1 the magistrate judge entered an order directing him to show cause by March 21 for this failure. Again, Mr. Davis did not respond to the court's orders. The district court entered a second show cause order on May 31, setting a new deadline of June 11 and warning that dismissal could result if Mr. Davis failed to comply with the show cause order.

On June 11, 2007, counsel for Mr. Davis responded to the second show cause order, explaining that he had failed to file an amended petition because he had experienced numerous computer problems and had undergone a family crisis.¹ He requested a further extension of the filing deadline, or, alternately, that the court "instead consider each of the claims contained in the preliminary petition on the merits." Aplt.App. at 20. The court granted the extension and ordered Mr. Davis to file an amended petition by July 10. Counsel for Mr. Davis again missed the deadline. On July 16, the district court dismissed Mr. Davis's petition sua sponte under Rule 41(b) due to his failure to comply with court orders. Respondent never made an appearance in the case.

II.

A district court may dismiss an action sua sponte "[i]f the plaintiff fails to prosecute or to comply with these [procedural] rules or a court order." Fed. R.Civ.P. 41(b); Olsen v. Mapes, 333 F.3d 1199, 1204 n. 3 (10th Cir.2003). Dismissals pursuant to Rule 41(b) may be made with or without prejudice. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161-62 (10th Cir.2007). The district court did not specify whether it intended to dismiss Mr. Davis's case with or without prejudice, so we "rely on background principles under Rule 41(b)," which instruct us to treat the dismissal as carrying prejudice unless the dismissal order states otherwise. Id. at 1162; see also Fed.R.Civ.P. 41(b). Consequently, we treat the district court's order as a dismissal with prejudice,² and we review it for abuse of discretion. Nasious, 492 F.3d at 1161.

We have long held that dismissal of an action with prejudice is a drastic sanction that should be employed only as a last resort. In Meade v. Grubbs, 841 F.2d 1512, 1520 n. 6 (10th Cir.1988), we said, "Dismissal of an action with prejudice is a severe sanction, applicable only in extreme circumstances. Because dismissal with prejudice defeats altogether a litigant's right to access to the courts, it should be used as a weapon of last, rather than first, resort." (internal quotations and citations omitted). With that general rule in mind, we subsequently set forth five factors the district court should consider before imposing the ultimate sanction of dismissal:

(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.

Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.1992) (internal citations and quotation marks omitted). It is "[o]nly when the aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits [that] dismissal [is] an appropriate sanction." Id. Importantly, we have noted, "The intent is to impose the sanction where the fault lies.... If the fault lies with the attorneys, that is where the impact of sanction should be lodged. If the fault lies with the clients, that is where the impact of the sanction should be lodged." In re Baker, 744 F.2d 1438, 1440, 1442 (10th Cir.1984) (en banc). Significantly, we made clear in Ocelot Oil Corporation v. Sparrow Industries, 847 F.2d 1458 (10th Cir.1988), that the purpose of the first three factors is to help the court determine whether the lawyer or the client is at fault and, accordingly, where "the impact of the sanction [should] be lodged." Id. at 1465.

The district court concluded here that the Ehrenhaus factors weighed in favor of dismissal. First, the court found "significant" prejudice to the respondent because "[p]etitioner has failed to file an amended petition for habeas relief listing all claims," and because "[t]he court found his original petition was lacking." Aplt. App. at 5-6. Without the final version of the petition, the court concluded, it was difficult for the respondent to know what the claims were against him.

It is not clear to us why the district court found the preliminary petition "lacking." Aplt.App. at 6. Apart from counsel's disclaimers and notice of intent to file an amended petition,³ the petition appears complete. It begins by noting that it was filed to satisfy 28 U.S.C. § 2244(d)'s deadline, and that "[l]eave to file an amended petition, abandoning some claims and more fully briefing claims not abandoned, will be sought shortly as pertinent rules allow." Id. at 21. It further explains that it contains all the information required under the relevant rules. Id. at 21-22. Thus, the district court's characterization of the petition as lacking is somewhat overstated: petitioner did not indicate that he planned to add any claims, and leave to file an amended petition was sought at Mr. Davis's own request, rather than in response to an asserted deficiency in the petition.

Furthermore, although respondent was served with the original petition, he never entered an appearance in this case. Because the district court entered an order requiring Mr. Davis to file an amended petition the day after respondent was served with the original petition, there is no chance respondent was prejudiced by exerting effort to reply to the initial petition. This case does not present the usual problems of delay where responsive pleadings, motions for discovery, status conferences, or trial preparations were underway when the action was dismissed under Rule 41(b). Cf. Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1152 (10th Cir.2007) (defendant prejudiced by plaintiff's failure to prosecute her case where defendant had already conducted trial preparations); In re Baker, 744 F.2d at 1440 (plaintiff and third party defendant's delay in deposing witness forced court to postpone trial where date was set and jury planned).

With respect to the next factor, the district court found that there had been "extreme" interference with the judicial process because the court was forestalled from taking any action on the case until Mr. Davis filed his amended petition. Aplt.App. at 6. The court was clearly correct, and we reject Mr. Davis's argument to the contrary. Although certainly other types of delays may cause an even greater interference with the judicial process than that which occurred here, the untimeliness and failure to respond to court orders cannot be ignored. This factor impacts the court's ability to manage its docket and move forward with the cases before it, and it cannot do this if a party fails to respond to court orders.

In assessing the culpability of the litigant, the district court observed that "it is difficult to determine what role the actual petitioner has played in the delays." Id. To the contrary, however, the record does not support the conclusion that Mr. Davis had any role in the delays. In both the response to the show cause order and in the briefing before this court, Mr. Davis's counsel very clearly stated that the fault was solely his own and that his client played no role in the delays. While we do not excuse a party's failure to comply with court orders simply because responsibility lies with his counsel, see Gripe v. City of Enid, 312 F.3d 1184, 1189 (10th Cir.2002) ("Those who act through agents are customarily bound by their agents' mistakes."), we have repeatedly emphasized the importance of directing sanctions at counsel when the fault lies with him rather than with his client. See In re Baker, 744 F.2d at 1442.⁴ In applying this standard, "[w]e have upheld dismissals and defaults where the parties themselves neglected their c...