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 o fficial capacity as Executive Director of th e 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 Ex ecutive 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- 2 - ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , MURPHY , and PHILLIPS , Circuit Judges.

________________ _________________ State prisoner Anthony Tafoya appeals fro m 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 af firm the dismissal a nd 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 calcula ted, in violation of 42 U.S.C. § 1983. On July 24, 2015, the district court orde red 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, th is panel has determined unanimously that oral argument would not materi ally 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 doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 Although we liberally c onstrue pro se filings, see Erickson v. Pardus , 551 U.S. 89, 94 (2007), we may not “assu me 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).- 3 - (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. Ta foya’s action with pr ejudice if he did not respond within 30 days. Mr. Tafoya filed no response. On September 18, 2015, the court dismissed his acti on with prejudice.
II. DISCUSSION Under Federal Rule of Civil Procedure 41(b), a district c ourt may dismiss an action with prejudice if a plaint iff 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 e rror of judgment or exceeds the bounds of permissible choice in the circum stances. This occu rs when a district court relies upon an erroneous conclusion of law or upon clearly erroneous findings of fact.” Ecclesiastes 9:10-11-12, In c. v. LMC Holding Co. , 497 F.3d 1135, 1143 (10th Cir. 2007) (quotations, citation, and brackets omitted). Mr. Tafoya asserts only that he complie d with the show cau se 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) re quires 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 failu re 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 Ci r. 2007) (quotations omitted).- 4 - brief. Aplt. Br. at 1. Th e attached response, however, wa s filed in a separate action before a different judge. 3 The docket history of this case indicates De fendants filed no motion to dismiss, and Mr. Taf oya filed no response. It also shows Mr. Tafoya failed to respond to the court’s show cause order. The district cour t therefore correctly concluded Mr. Tafoya failed to comply with the show cause order. It was consequently within the distri ct court’s discretion to dism iss 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 presen t a nonfrivolous argument on appeal. See DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Ci r. 1991) (“In order to succeed on his motion, an appellant must show a fina ncial inability to pay the re quired filing fees and the existence of a reasoned, nonfri volous argument on the law and facts in support of the

3 This appeal concerns the dist rict 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 Ru le 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) whet her the court warned the party in advance that dismissal of the action would be a lik ely sanction for non-comp liance; 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 expre ssly apply these factors, but Mr. Tafoya does not challenge the court’s dismissal on that ground.- 5 - 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