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Harper v. City of Cortez

United States District Court, D. Colorado

July 8, 2015

MARION ORNESTUS HARPER, III, Plaintiff,
v.
CITY OF CORTEZ, MONT. CO. SHERIFF OFFICE, CORTEZ POLICE DEPT., MONT. CO. BOARD OF COMMISSIONERS, MONT. CO. CPL. STEPHANOKOS, SGT. ANGEL MARTINEZ, OFF. FRANK KOBEL, MONT. CO. UNDERSHERIFF ROBIN CRONK, and MONT. CO. LT. TALLEY, Defendants.

ORDER

KRISTEN L. MIX, Magistrate Judge.

This matter is before the Court on Plaintiff's Response to Order to [Show] Cause [#36][1] (the "OSC Response") and Plaintiff's Response to City Defendants/County Defendants [#37] (the "MTD Response"). Plaintiff proceeds in this matter pro se.[2]

I. OSC Response

On May 7, 2015, the Court entered an Order to Show Cause regarding Plaintiff's failure to serve Defendant Cronk or to provide sufficient information so that the United States Marshal's Service can effect service on Defendant Cronk. Order to Show Cause [#30] at 1-2. The Court ordered Plaintiff to respond to the Order to Show Cause no later than May 29, 2015. Id. at 2.

On May 29, 2015, Plaintiff filed a document that purported to respond to the Order to Show Cause, but that did not provide proof of service on Defendant Cronk, show good cause for Plaintiff's failure to properly serve Defendant Cronk, or provide a current address to allow the United States Marshal's Service to effect service on this Defendant. Instead, Plaintiff simply stated that he

respectfully request[s] this Court grant permission to the Plaintiff and extension of "Due Date" for SHOW CAUSE ORDER and ANSWER TO DEFENDANTS' MOTION TO DISMISS for the following reasons: 1. Mr. Robin Cronk. Defendant cannot be located by his attorney Katie Whitney, nor Reid Wright, William Furse, etc. at District Atty. office on Montezuma County;...
I do intend to pursue 14-cv-02984-KLM, but I have been homeless, destitute, and unable to pay postage and other associated costs.

Responses to: Motion to Dismiss Show Cause Order [#31] at 1.

As a result, the Court reminded Plaintiff that he must comply with all applicable rules. Specifically, the Court explained that "if Plaintiff wants to ask the Court to do something, including extending a deadline, he must file a motion. " Minute Order [#35] at 2 (emphasis in original). The Court further explained that a request for an extension must be made by filing a motion that specifies the amount of additional time requested and the reason for the request and sua sponte extended Plaintiff's deadline to respond to the Order to Show Cause. Id. at 3. The Court also sua sponte extended Plaintiff's deadline to respond to the two pending motions to dismiss. Id. The Court noted:

this case was filed on November 3, 2014, and the motions to dismiss were filed on January 28, 2015 and February 20, 2015. As a result, Plaintiff has had more than seven month to serve Defendant Cronk and he has had more than three and four months, respectively, to respond to the motions. If Plaintiff wishes to pursue this litigation, as he states in his Response, he must respond to the motions and serve Defendant Cronk. The Court cannot allow this case to linger on its docket without any forward progress.

Id. at 2-3. After sua sponte extending Plaintiff's deadlines, the Court made clear that

Failure to obey the instructions in this Minute Order may result in sanctions, including dismissal of this action. Plaintiff is also warned that the Court will not further extend these deadlines absent extraordinary circumstances.

Id. at 3 (emphasis in original).

In the OSC Response, Plaintiff asks the Court to not dismiss his claims against Defendant Cronk. OSC Repsonse [#36] at 1. Plaintiff states that "Defendant Cronk is a central figure in both the present case 1:14-cv-02984-[KLM] and case number[ ] 1:12-cv-02429-CMA-KLM and Montezuma County District Court case 12-cv-154 - from which all subsequent complaints arose." Id. Plaintiff explains that he "was advised by Reid Write at Montezuma County District Attorney's Office that" he would not provide him with Defendant Cronk's contact information "unless [Plaintiff has] a court order from a judge." Id. at 2. Plaintiff states that he also "requested Undersheriff Cronk's address from his former criminal attorney Katie Whitney" but was told that she could not provide the information to him for ethical reasons. Id. The ...


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