UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ANTHONY TAFOYA, 

 Plaintiff - Appellant, 

v. 

STATE OF COLORADO; RICK RAEMISCH, 

in his official capacity as Executive Director of 

the Colorado Department of Corrections, and in 

his individual capacity; ROGER WERHOLZ, 

in his official capacity as Executive Director of 

the Colorado Department of Corrections, and in 

his individual capacity; TONY CAROCHI, in 

his official capacity as Executive Director of 

the Colorado Department of Corrections, and in 

his individual capacity; TOM CLEMENTS, in 

his official capacity as Executive Director of 

the Colorado Department of Corrections, and in 

his individual capacity; ARISTEDES 

ZAVARIS, in his official capacity as Executive 

Director of the Colorado Department of 

Corrections, and in his individual capacity; JOE 

ORTIZ, in his official capacity as Executive 

Director of the Colorado Department of 

Corrections, and in his individual capacity; 

JOHN SUTHERS, in his official capacity as 

Executive Director of the Colorado Department 

of Corrections, and in his individual capacity; 

MARY CARLSON, in her official capacity as 

Time Computation Manager of Colorado 

Department of Corrections, and in her 

individual capacity; JOHN DOE, in his/her 

official capacity as Executive Director of the 

Colorado Department of Corrections, and in 

his/her individual capacity, 

 Defendants - Appellees. 

No. 15-1384 

(D.C. No. 1:15-CV-01411-LTB) 

(D. Colo.) 

_________________________________ 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 5, 2016

Elisabeth A. Shumaker 

Clerk of Court
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ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges. 

_________________________________ 

State prisoner Anthony Tafoya appeals from the district court’s dismissal of his 

action and moves for in forma pauperis (“ifp”) status on appeal. Exercising 

jurisdiction under 28 U.S.C. § 1291, we affirm the dismissal and deny his motion for 

ifp status. 

I. BACKGROUND 

On July 2, 2015, Mr. Tafoya, acting pro se,1

 filed an action in the District of 

Colorado, alleging Colorado Department of Corrections officials failed to apply goodtime and earned-time credits toward his mandatory release date (“MRD”) and are 

holding him beyond that date, as properly calculated, in violation of 42 U.S.C. § 1983. 

On July 24, 2015, the district court ordered Mr. Tafoya to show cause why his 

action should not be dismissed under Ankeney v. Raemisch, 344 P.3d 847 (Colo. 2015) 

 *

 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. 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. 

1

 Although we liberally construe pro se filings, see Erickson v. Pardus, 551 U.S. 

89, 94 (2007), we may not “assume the role of advocate,” Yang v. Archuleta, 525 F.3d 

925, 927 n.1 (10th Cir. 2008) (quotations omitted); see also United States v. Pinson, 

584 F.3d 972, 975 (10th Cir. 2009), and we do not “fashion . . . arguments for him,” 

United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994). 
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(en banc), which held that the good-time and earned-time credits at issue “do not 

constitute the service of an inmate’s sentence but rather have significance only for 

calculating his eligibility for release to parole.” 344 P.3d at 852. The show cause 

order stated the court would dismiss Mr. Tafoya’s action with prejudice if he did not 

respond within 30 days. Mr. Tafoya filed no response. On September 18, 2015, the 

court dismissed his action with prejudice. 

II. DISCUSSION 

Under Federal Rule of Civil Procedure 41(b), a district court may dismiss an 

action with prejudice if a plaintiff fails “to prosecute or to comply with [the Federal 

Rules of Civil Procedure] or a court order.”2

 “We review dismissals under Rule 41(b) 

for abuse of discretion.” Nasious, 492 F.3d at 1161. “An abuse of discretion occurs 

when a district court makes a clear error of judgment or exceeds the bounds of 

permissible choice in the circumstances. This occurs when a district court relies upon 

an erroneous conclusion of law or upon clearly erroneous findings of fact.” 

Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 

2007) (quotations, citation, and brackets omitted). 

 Mr. Tafoya asserts only that he complied with the show cause order by filing a 

“response[] to defendants’ motion to dismiss,” which he attaches to his opening appeal 

 2

 “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 . . . comply with the rules of civil procedure or 

court’s orders.” Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cty. Justice 

Ctr., 492 F.3d 1158, 1161 n.2 (10th Cir. 2007) (quotations omitted). 
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brief. Aplt. Br. at 1. The attached response, however, was filed in a separate action 

before a different judge.3

 The docket history of this case indicates Defendants filed no 

motion to dismiss, and Mr. Tafoya filed no response. It also shows Mr. Tafoya failed 

to respond to the court’s show cause order. The district court therefore correctly 

concluded Mr. Tafoya failed to comply with the show cause order. It was 

consequently within the district court’s discretion to dismiss Mr. Tafoya’s action under 

Rule 41(b).4

 For these reasons, we affirm. We also deny Mr. Tafoya’s request to proceed ifp

because he has failed to present a nonfrivolous argument on appeal. See DeBardeleben 

v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (“In order to succeed on his motion, an 

appellant must show a financial inability to pay the required filing fees and the 

existence of a reasoned, nonfrivolous argument on the law and facts in support of the 

 3

 This appeal concerns the district court’s dismissal order in Tafoya v. Raemisch, 

No. 1:15-cv-01411-LTB (D. Colo. 2015). Mr. Tafoya filed the response motion as an 

“interested party” in Esquibel v. Raemisch, No. 1:15-cv-00408-REB-KLM (D. Colo. 

2015). 

4

 We have “suggested various factors a district court may wish to consider” 

when deciding whether to dismiss under Rule 41(b): “(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 non-compliance; and (5) the 

efficacy of lesser sanctions.” Lee v. Max Int’l, LLC, 638 F.3d 1318, 1323 (10th Cir. 

2011) (quoting Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)). The 

district court did not expressly apply these factors, but Mr. Tafoya does not challenge 

the court’s dismissal on that ground. 
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issues raised on appeal.”); accord Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 

2008). 

ENTERED FOR THE COURT 

Scott M. Matheson, Jr. 

Circuit Judge