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Harris v. Thomas

United States District Court, D. Colorado

June 30, 2015



MICHAEL E. HEGARTY, Magistrate Judge.

Before the Court is Defendant Officer Scott Thomas's Motion to Dismiss for Failure to Prosecute [filed May 28, 2015; docket #27]. District Judge Robert E. Blackburn referred the Motion to this Court. See docket #28. As Plaintiff failed to participate in proceedings mandated by Fed.R.Civ.P. 26(f), failed to cooperate in the preparation of a Scheduling Order, failed to appear at a March 26, 2015 status conference or to respond to this Court's Order to Show Cause for his failure to appear ( see docket #20), failed to respond to this Court's Order to Show Cause by April 10, 2015 why the case should not be dismissed for failure to prosecute ( see docket #20), and failed to respond as ordered to the pending Motion ( see docket 28), the Court recommends that this case be dismissed with prejudice.[1]


Plaintiff initiated this action on November 24, 2014, and proceeds in this matter pro se . Docket #1. He was granted leave to proceed in forma pauperis and paid no filing fees. Docket #4. Upon service of the only named Defendant ( see dockets ## 12, 13), the Court set a scheduling conference. Docket #14. Defense counsel informed the Court of Plaintiff's failure to cooperate in preparing a proposed scheduling order. Motion to Dismiss for Failure to Prosecute, docket #27 at 2. Defendant filed a Motion to Dismiss on March 24, 2015. Docket #17. On March 26, 2015, Defendant Thomas appeared for a scheduling conference, but Plaintiff did not appear; the Court thus converted it to a status conference. Docket #18. The Court issued an Order to Show Cause why the case should not be dismissed for failure to prosecute, with a response due by April 6, 2015. Docket #20. Plaintiff did not respond to that Order. Plaintiff did not file a response, so the Court denied the Motion to Dismiss without prejudice. Docket # 22. The Court extended the Order to Show Cause to April 10, 2015. Docket #23. Plaintiff still did not respond. Defendant filed the pending Motion to Dismiss for Failure to Prosecute on May 28, 2015. Docket #27. The Court sua sponte issued an order to allow Plaintiff additional time to respond to the motion, until June 22, 2015. Docket #29. The Court then waited a week beyond that date to issue this recommendation, yet Plaintiff still did not respond. The Court notes that each order has been mailed to Plaintiff at the address he noted on his Complaint. See dockets ## 11, 15, 19, 21, 30. Defense counsel has also informed the Court that Plaintiff's telephone number appears to be disconnected. Id. at 1.


Although Plaintiff is proceeding in this case without an attorney, he bears the responsibility of prosecuting this case with due diligence. As noted infra, Plaintiff has failed to engage in any way since the filing of his Complaint. The Plaintiff has neither responded to the current Motion, nor requested extra time in which to file a response. Furthermore, the Plaintiff has failed to cooperate in the required Rule 26(f) meeting and the preparation of a Scheduling Order. Although the Court must liberally construe pro se filings, pro se status does not excuse the obligation of any litigant to comply with the same rules of procedure that govern other litigants. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992); see also Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

Additionally, the Federal Rules of Civil Procedure give a district court ample tools to deal with a recalcitrant litigant. See Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993). Fed.R.Civ.P. 41(b) allows a defendant to move for dismissal of an action if the plaintiff fails to prosecute or to comply with a court order. See id.; see also Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007). 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 prosecute or comply with the rules of civil procedure or the court's orders. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962).

"A district court undoubtedly has discretion to sanction a party for failing to prosecute or defend a case, or for failing to comply with local or federal procedural rules." Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). However, a dismissal with prejudice is a more severe sanction and, generally, requires the district court to consider certain criteria. AdvantEdge Bus. Group v. Thomas E. Mestmaker & Assoc., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009). The Tenth Circuit set forth a non-exhaustive list of factors a district court should consider when evaluating grounds for dismissal of an action with prejudice: "(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 quotations and citations omitted). "[D]ismissal is warranted when the aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits.'" Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1144 (10th Cir. 2007) (quoting Ehrenhaus, 965 F.2d at 921).

Considering the first factor, the Court finds that Plaintiff's lack of cooperation and diligence in this case has caused the Defendant prejudice because it has been deprived of information and documents necessary to defend against Plaintiff's claims. Moreover, Plaintiff's lack of response to this Court's orders and his failure to participate has interfered with the judicial process in that the Court has been unable to issue a complete scheduling order in this case. Additionally, the necessity in issuing orders to show cause increases the workload of the Court and interferes with the administration of justice.

Furthermore, the Plaintiff has provided no justification for his failures to respond to Court orders and to participate in the litigation; his culpability is evident. Plaintiff was warned in an Order to Show Cause that the Court would recommend dismissal for his failure to prosecute; yet, he has made no response. Finally, the Court finds that no sanction less than dismissal with prejudice would be effective here. The Plaintiff has essentially abandoned this litigation; thus, no monetary sanction would be practical. The Court concludes that dismissal with prejudice is the appropriate result.


The Plaintiff appears to have abandoned his claims in this matter. He has failed to prosecute the case with due diligence by his failure to participate in a Rule 26(f) conference in this matter, failure to cooperate in the preparation of a Scheduling Order, failure to respond to this Court's orders to show cause, and failure to respond to the Defendant's Motion to Dismiss for Failure to Show Cause or to request an extension of time to respond if he was unable to do so in a timely manner. For these reasons alone, dismissal of this action against the Defendant is warranted.

Based on the foregoing and the entire record herein, and pursuant to Fed.R.Civ.P. 41(b), I respectfully RECOMMEND that the District Court grant Defendant's Motion to Dismiss for Failure to Prosecute [filed May 28, 2015; docket #27] and dismiss this case with prejudice for Plaintiff's failure to prosecute this action.

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