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Dawson-Phillips v. State

United States District Court, D. Colorado

April 22, 2015

DRED DAWSON-PHILLIPS, and others similarly situated, Plaintiff,
v.
STATE OF COLORADO, RICK RAEMISCH, ROGER WERHOLTZ, TONY CAROCHI, TOM CLEMENTS, ARISTEDES ZAVARIS, JOE ORTIZ, and JOHN SUTHERS, Defendants.

ORDER

RAYMOND P. MOORE, District Judge.

This matter is before the Court on the Recommendation of United States Magistrate Judge ("Recommendation") (ECF No. 35) issued on March 25, 2015, to dismiss Plaintiff's case for failure to keep the court informed of his current address in violation of D.C.COLO.LCivR 11.1(d) and failure to prosecute pursuant to D.C.COLO.LCivR 41.1. For the reasons stated below, the Court has conducted a de novo review of the matter and, upon such review, accepts the Recommendation and dismisses this case.

I. BACKGROUND

Plaintiff, proceeding pro se, filed this action on November 25, 2014, challenging the Defendants' methodology or policy concerning the application of "good or earned time" credits to an inmate's release date. The Court file shows the following.

1. On December 18, 2014, the Magistrate Judge to whom this case was then referred[1] issued an Order to Show Cause as to why Defendant Joe Ortiz should not be dismissed for failure to prosecute. (ECF No. 18.) That order was returned as undeliverable, with the word "Gone" written on the returned envelope. (ECF No. 21.);
2. On January 6, 2015, another Order to Show cause was issued, this time as to why Defendant Tony Carochi should not be dismissed for failure to prosecute, which order was also returned as undeliverable. (ECF Nos. 23, 27.) That returned order was marked "Discharged to History." (ECF No. 27.);
3. By recommendations dated January 26, 2015 and February 3, 2015, the Magistrate Judge recommended that Defendants Carochi and Ortiz, respectively, be dismissed without prejudice for failure to prosecute. (ECF Nos. 28, 30.) Those recommendations were also returned as undeliverable, with handwritten notations of "Discharged to History." (ECF Nos. 31, 34.); and
4. By Order dated March 2, 2015, this Court adopted the January 26, [2] and February 3, 2015, recommendations and dismissed Defendants Carochi and Ortiz. (ECF No. 33.)

In addition to the two Orders to Show Cause discussed above, on February 3, 2015, a third Order to Show Cause was issued, this time based on Plaintiff's failure to keep the court informed of his current address and for failure to prosecute. (ECF No. 29.) Plaintiff was ordered to show cause by March 2, 2015, as to why his Complaint should not be dismissed, and was advised the failure to do so would result in the recommendation of dismissal of the entire Complaint. That order was also returned as undeliverable. (ECF No. 34.)

When no response was received to the last Order to Show Cause (ECF No. 29), the Magistrate Judge issued the Recommendation now before the Court. That Recommendation, however, did not inform Plaintiff of his right to object.

II. LEGAL STANDARDS

A. Review of the Magistrate Judge's Report and Recommendation

When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge "determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." In conducting its review, "[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3). An objection is proper if it is filed timely in accordance with the Federal Rules of Civil Procedure and specific enough to enable the "district judge to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute." United States v. 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a timely and specific objection, "the district court may review a magistrate's report under any standard it deems appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted); see also Fed.R.Civ.P. 72 Advisory Committee's Note ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.").

The Tenth Circuit has "adopted a firm waiver rule when a party fails to object to the findings and recommendations of the magistrate." Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). Under this rule, "the failure to make timely objection to the magistrate's findings or recommendations waives appellate review of both factual and legal questions." Id. There are, however, two exceptions to the firm waiver rule: "when (1) a pro se litigant has not been informed of the time period for objecting and the consequences of failing to object, or when (2) the ...


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