United States District Court, D. Colorado
ORDER OF DISMISSAL
Michael E. Hegarty, United States Magistrate Judge.
matter comes before the Court sua sponte, due to
Plaintiff's failures to respond to this Court's June
2, 2017 order and July 5, 2017 order to show cause.
an incarcerated person proceeding pro se, initiated
this lawsuit on February 22, 2016, then filed the operative
Third Amended Complaint during initial review on September 7,
2016 alleging that Defendants violated his Eighth and
Fourteenth Amendment rights. ECF No. 11. The reviewing court
dismissed one Defendant and the Plaintiff's request for
money damages against Defendants in their official
capacities. ECF No. 12. On March 2, 2017, the Defendants
responded to the Third Amended Complaint by filing a Motion
to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6). See
ECF No. 36. The following day, this Court issued an order
directing the Plaintiff to file a response to the
Defendant's motion on or before March 26, 2017 and
granted Defendants' motion to stay discovery pending
resolution of the motion. ECF Nos. 38, 39.
Court held a Status Conference on March 6, 2017 at which the
Court was informed the Plaintiff had been found
“incompetent” during a competency hearing in a
state criminal case. ECF No. 40. The Court directed Plaintiff
to file a motion for appointment of pro bono counsel and to
attach a copy of the state court's order finding him
incompetent; the Court also stayed the proceedings, including
briefing on the motion to dismiss, pending further order of
the Court. Id. Plaintiff filed the motion on March
16, 2017 and the Court granted it on March 20, 2017. ECF Nos.
44, 46. At a subsequent Status Conference on April 12, 2017,
the Court informed the parties that the Clerk of the Court
was still attempting to secure the appointment of counsel for
the Plaintiff and ordered that the stay would remain in place
to give the Clerk additional time. ECF No. 52. The Court did
the same at an April 24, 2017 conference. ECF No. 54.
on June 2, 2017, the Court determined that it could not
locate non-conflict, volunteer counsel to represent the
Plaintiff. Accordingly, the Court lifted the stay and ordered
Plaintiff to file a response to the motion to dismiss on or
before June 26, 2017. ECF No. 56. A Certificate of Service
demonstrates that the order was mailed to Plaintiff at his
current address at the Weld County Jail. The address had been
the same since May 11, 2016, when Plaintiff informed the
Court of the change in his residence. See ECF No. 7.
However, on June 12, 2017, the June 2, 2017 order was
returned to the Court noting, “no longer in
custody” and “unable to forward.” ECF No.
this Court ordered Plaintiff to show cause on or before July
20, 2017 why this case should not be dismissed for his
failure to prosecute the action. ECF No. 59. Plaintiff was
reminded that he must comply with all court orders issued in
his case and, as is any party, he is responsible for ensuring
the Court has his current contact information at all times
during the litigation. Id. Plaintiff was also
advised that his failure to timely respond to the Order to
Show Cause would result in this Court dismissing the action
for his failure to prosecute. Id. The record
reflects that the order to show cause was also returned to
the Court as “undeliverable.” ECF No. 61. The
Plaintiff did not respond.
Plaintiff is proceeding in this case without an attorney, he
bears the responsibility of prosecuting this case with due
diligence. 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 court
orders and 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). The Plaintiff has neither appeared nor
filed anything in this case since April 24, 2017. As such,
the Plaintiff has filed no response to the motion to dismiss
nor has he requested an extension of time in which to do so.
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 to
comply with the rules of civil procedure and/or the
court's orders. Link v. Wabash R.R. Co., 370
U.S. 626, 630-31 (1962).
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).
Court finds the first factor is neutral since, although the
Defendants have been named in a lawsuit and responded with a
Motion to Dismiss, no further action has been taken against
them. Regarding the second factor, 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 advance this case. Additionally,
the necessity of issuing an Order to Show Cause increases the
workload of the Court and interferes with the administration
the Plaintiff has provided no current contact information and
no justification for his failures to respond to Court orders
and to participate in the litigation; his culpability is
evident. Plaintiff was warned in the Order to Show Cause that
the Court would dismiss the action for his failure to
prosecute; yet, he has made no response. Finally, the Court
finds that no sanction less than dismissal without prejudice
would be effective here. The Plaintiff has essentially
abandoned this litigation; thus, no monetary sanction would
although consideration of the factors supports the more
“severe” sanction of dismissal with prejudice,
the Court concludes that dismissal without prejudice is the
appropriate result where, as here, the pro se
Plaintiff has been found “incompetent” by a state
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 comply with the Court's order
to respond to the Motion to Dismiss and failure to respond to
this Court's order to show cause. All recent mailings
from this Court have been returned as
“undeliverable.” For these reasons alone,
dismissal of this action against the Defendants is warranted.
on the foregoing and the entire record herein, and pursuant
to Fed.R.Civ.P. 41(b), the Court DISMISSES this case WITHOUT
PREJUDICE for Plaintiffs failure to prosecute this ...