Appellate Case: 23-2060 Document: 010110903886 Date Filed: 08/16/2023 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`August 16, 2023
`
`Christopher M. Wolpert
`Clerk of Court
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`
`
`
`
`No. 23-2060
`(D.C. No. 1:21-CV-00279-DHU-DLM)
`(D. N.M.)
`
`JOSEPH ANTONETTI,
`
` Plaintiff - Appellant,
`
`v.
`
`FNU SANTISTEFAN; FNU MARTINEZ,
`Warden; FNU BROWN, Warden; FNU
`BUCKALEW, Lt.; JOHN GAY, Secretary;
`GEO CORP; FNU CHAVEZ, Cpt.;
`ALISHA LUCERO; FNU ETTER, STIU;
`FNU MENDOZA, STIU; FNU UYUON,
`STIU; FNU GOMEZ, CSW; FNU LUJAN-
`GRISHAM, Gov.; JOHN/JANE DOES, 1-
`15; FNU DURAN; NMCD,
`
` Defendants - Appellees.
`_________________________________
`
`ORDER AND JUDGMENT*
`_________________________________
`
`Before McHUGH, MURPHY, and CARSON, Circuit Judges.**
`_________________________________
`
`Joseph Antonetti appeals from an order of the district court dismissing his civil
`
`rights complaint with prejudice. The district court dismissed Antonetti’s complaint
`
`
`* This order and judgment is not binding precedent, except under the doctrines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.
`** After examining the briefs and appellate record, this panel has determined
`unanimously that oral argument would not materially assist in the determination of
`this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
`ordered submitted without oral argument.
`
`
`
`
`
`
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`August 16, 2023
`
`Christopher M. Wolpert
`Clerk of Court
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`
`
`
`
`No. 23-2060
`(D.C. No. 1:21-CV-00279-DHU-DLM)
`(D. N.M.)
`
`JOSEPH ANTONETTI,
`
` Plaintiff - Appellant,
`
`v.
`
`FNU SANTISTEFAN; FNU MARTINEZ,
`Warden; FNU BROWN, Warden; FNU
`BUCKALEW, Lt.; JOHN GAY, Secretary;
`GEO CORP; FNU CHAVEZ, Cpt.;
`ALISHA LUCERO; FNU ETTER, STIU;
`FNU MENDOZA, STIU; FNU UYUON,
`STIU; FNU GOMEZ, CSW; FNU LUJAN-
`GRISHAM, Gov.; JOHN/JANE DOES, 1-
`15; FNU DURAN; NMCD,
`
` Defendants - Appellees.
`_________________________________
`
`ORDER AND JUDGMENT*
`_________________________________
`
`Before McHUGH, MURPHY, and CARSON, Circuit Judges.**
`_________________________________
`
`Joseph Antonetti appeals from an order of the district court dismissing his civil
`
`rights complaint with prejudice. The district court dismissed Antonetti’s complaint
`
`
`* 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.
`** After examining the briefs and appellate record, this panel has determined
`unanimously that oral argument would not materially assist in the determination of
`this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
`ordered submitted without oral argument.
`
`
`
`
`
`
`
`Appellate Case: 23-2060 Document: 010110903886 Date Filed: 08/16/2023 Page: 2
`
`pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute and comply with the district
`
`court’s order to file an amended complaint. The district court erred in dismissing
`
`Antonetti’s complaint with prejudice without considering the factors set out by this
`
`court in Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992). Accordingly,
`
`exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse the district court’s
`
`order of dismissal and remand to the district court for further proceeding consistent
`
`with this opinion.1
`
`Antonetti commenced this action by filing a “Prisoner’s Civil Rights
`
`Complaint” in district court. The district court, thereafter, entered an order dismissing
`
`Antonetti’s complaint without prejudice for failure to state a claim. The order of
`
`dismissal, however, granted Antonetti an opportunity to file an amended complaint
`
`within thirty days.2 Instead of filing an amended complaint, Antonetti filed a motion
`
`to reconsider the dismissal order. He also sought to appeal the dismissal order to this
`
`court. The district court denied the motion to reconsider and extended the amendment
`
`deadline by an additional thirty days. This court dismissed Antonetti’s notice of
`
`appeal, noting in part that the appeal was premature as Antonetti’s deadline to file an
`
`amended complaint was pending and the dismissal order was not a final judgment.
`
`
`1 Antonetti’s motion to proceed on appeal in forma pauperis is granted.
`2 Notably, this comprehensive order detailed the pleading flaws in Antonetti’s
`complaint—including setting out claims only cognizable under 28 U.S.C. § 2241 and
`failing to set forth plausible factual allegations in support of the claims for relief—
`and noted that if Antonetti “declines to timely amend, the Court may dismiss the case
`with prejudice.”
`
`
`
`2
`
`
`
`Appellate Case: 23-2060 Document: 010110903886 Date Filed: 08/16/2023 Page: 3
`
`When Antonetti failed to file a timely amended complaint, the district court
`
`dismissed the entire case. In so doing, it relied entirely on Rule 41(b). Dist. Ct. Order
`
`at 1-2 (“The extended deadline for Antonetti to file an amended complaint has now
`
`passed. He has not filed an amended complaint, sought further extension of the
`
`deadline, or otherwise shown cause for his failure to amend. The Court will therefore
`
`dismiss this case under Fed. R. Civ. P. 41(b) for ‘failure to prosecute [and] comply
`
`with the . . . court’s orders.’ Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir.
`
`2003).”).
`
`The only basis cited by the district court in its order of dismissal is Antonetti’s
`
`failure to prosecute and to comply with the district court’s orders. It is certainly true
`
`that Rule 41(b) authorizes involuntary dismissals for failure to prosecute as well as
`
`failure to comply with rules and court orders. This court has, however, allowed
`
`district courts to dismiss claims under Rule 41(b) “without attention to any particular
`
`procedures” only when the dismissal is without prejudice. Nasious v. Two Unknown
`
`B.I.C.E. Agents, 492 F.3d 1158, 1162 (10th Cir. 2007); see also AdvantEdge Bus.
`
`Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009).
`
`Before dismissing with prejudice, on the other hand, district courts “must” consider
`
`the Ehrenhaus factors. Nasious, 492 F.3d at 1162; Ecclesiastes 9:10-11-12, Inc. v.
`
`LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007). Given that the sole basis
`
`for the district court’s order of dismissal with prejudice was Rule 41(b),3 its failure to
`
`
`3 Because it did not form the basis for the district court’s order of dismissal,
`this court offers up no opinion on whether it would be appropriate to dismiss
`3
`
`
`
`
`
`Appellate Case: 23-2060 Document: 010110903886 Date Filed: 08/16/2023 Page: 4
`
`consider the Ehrenhaus factors before dismissing Antonetti’s case requires that this
`
`court reverse. See Nasious, 492 F.3d at 1163-64 (reversing dismissal with prejudice
`
`and remanding where the district court did not consider the Ehrenhaus factors); cf.
`
`Ecclesiastes 9:10-11-12, Inc., 497 F.3d at 1151 (affirming dismissal with prejudice
`
`where the district court “thoroughly considered and properly applied the Ehrenhaus
`
`criteria”).
`
`We REVERSE the district court’s with-prejudice order of dismissal and
`
`REMAND to the district court for further proceedings consistent with this opinion.
`
`Entered for the Court
`
`
`Michael R. Murphy
`Circuit Judge
`
`
`
`
`Antonetti’s case with prejudice pursuant to Fed. R. Civ. P. 12(b)(6) based on the
`analysis set out in the district court original without-prejudice dismissal order, see
`supra n.2.
`
`
`
`4
`
`
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