United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the Court's
Order [#37] granting Plaintiff's request
to appoint counsel and directing Plaintiff to file a Response
to the Motion to Dismiss [#23], which has been pending since
May 9, 2017, no later than December 20, 2017. Plaintiff was
previously warned that failure to file a Response by the
deadline “may result in sanctions, including dismissal
of this action.” Minute Order [#34]. Despite
this warning, and the lengthy extensions granted to
Plaintiff, he has not filed a Response to the Motion to
Dismiss to date. The last contact that Plaintiff made with
the Court was on December 12, 2017, when he filed a new
Motion for Appointment of Counsel [#42].
need to prosecute one's claim (or face dismissal) is a
fundamental precept of modern litigation . . . .”
Banks, 680 F. App'x at 724 (quoting Rogers
v. Andrus Transp. Servs., 502 F.3d 1147, 1152 (10th Cir.
2007)). An action may be involuntarily dismissed “[i]f
the plaintiff fails to prosecute or to comply with [the
Federal Rules of Civil Procedure] or a court order.”
Fed.R.Civ.P. 41(b); Banks v. Katzenmeyer, 680 F.
App'x 721, 724 (10th Cir. 2017) (citing Olsen v.
Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)
(“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 court[s'] orders.”)).
dismissal with prejudice, the Court must apply the
factors listed in Ehrenhaus v. Reynolds, 965 F.2d
916, 921 (10th Cir. 1992): “(1) the degree of actual
prejudice to the defendant”; (2) “the amount of
interference with the judicial process”; (3) the
litigant's culpability; (4) whether the court warned the
noncomplying litigant that dismissal of the action was a
likely sanction; and (5) “the efficacy of lesser
sanctions” (internal quotation marks omitted).
respect to the first two Ehrenhaus factors,
Plaintiff has failed to respond to Defendants' Motion to
Dismiss [#28] filed on May 9, 2017. Thus, the sheer length of
time that the Motion to Dismiss [#28] has been pending
without being fully briefed likely prejudices Defendants and
certainly interferes with the judicial process. Thus, the
first two factors weigh in favor of dismissing this case with
the third and fourth Ehrenhaus factors, Plaintiff
has failed to seek more time from the Court to comply with
Court deadlines. As a voluntary pro se litigant, it is
Plaintiff's responsibility to ensure that he complies
with case deadlines and Court orders. See, e.g.,
Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.
1992). While Plaintiff's request to appoint counsel was
granted on September 21, 2017, the Court does not have the
power to appoint an attorney without his or her consent,
see Mallard v. U.S. Dist. Court for the S. Dist. of
Iowa, 490 U.S. 296, 310 (1989), and no attorney has
volunteered to represent Plaintiff in this matter. There is
no indication that Plaintiff, at a minimum, did not receive
the Court's August 15, 2017 Minute Order [#34] setting
the initial extended deadline for Plaintiff to respond to
September 15, 2017, and warning that failure to meet Court
deadlines may result in the dismissal of his case.
Furthermore, Plaintiff has previously been warned that he
remains responsible for litigating his case himself in the
event that counsel is not obtained. See Orders [#25,
#37]. Thus, these factors weigh in favor of dismissal with
regarding the fifth Ehrenhaus factor, it does not
appear that any sanction less than dismissal would be
effective. Although Plaintiff is proceeding pro se, that does
not excuse him from complying with Court deadlines. See
Green, 969 F.2d at 917. In addition, given that
Plaintiff is proceeding in forma pauperis and this matter is
still in the beginning stages, the Court doubts that a
monetary or evidentiary sanction would be practical or
effective, nor would such sanctions bear a substantial
relationship to Plaintiff's misconduct. Under these
circumstances, no lesser sanction is warranted and dismissal
with prejudice is the appropriate result. Accordingly, IT IS
HEREBY RECOMMENDED that all claims asserted
against Defendants in this lawsuit be DISMISSED with
FURTHER ORDERED that pursuant to
Fed.R.Civ.P. 72, the parties shall have fourteen (14) days
after service of the Recommendation to serve and file any
written objections in order to obtain reconsideration by the
District Judge to whom this case is assigned. A party's
failure to serve and file specific, written objections waives
de novo review of the Recommendation by the District
Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S.
140, 147-48 (1985), and also waives appellate review of both
factual and legal questions. Makin v. Colo. Dept. of
Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley
v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A
party's objections to this Recommendation must be both
timely and specific to preserve an issue for de novo
review by the District Court or for appellate review.
United States v. One Parcel of Real Prop., 73 F.3d
1057, 1060 (10th Cir. 1996).
 “[#37]” is an example of
the convention the Court uses to identify the docket number
assigned to a specific paper by the court's electronic
case filing and management system (CM/ECF). This convention
is used throughout this Order.
 It appears that Plaintiff may not have
received the Order [#37] granting appointment of counsel.
See Mail Returned as Undeliverable on ...