United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Recommendation of United
States Magistrate Judge (the “Recommendation”)
[Docket No. 45] filed on February 27, 2018 and
defendants' Motion to Strike or, in the Alternative,
Response to Plaintiff's Objection to the Magistrate's
Recommendation for Dismissal [Docket No. 49]. The magistrate
judge recommends dismissal of all claims asserted against
defendants as a sanction for failing to respond to
defendants' motion to dismiss and failure to prosecute
his claims. Docket No. 45 at 3. Plaintiff filed a timely
objection. Docket No. 47. Defendants move to strike
plaintiff's objection because it is written in the
Spanish language. Docket No. 49 at 2. In light of
plaintiff's pro se status, the Court construes his
filings liberally. See Haines v. Kerner, 404 U.S.
519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106,
1110 & n.3 (10th Cir. 1991).
is an inmate currently incarcerated in Texas. Docket No. 41
at 2. He was previously incarcerated at the Douglas County
Jail in Colorado. Docket No. 17 at 4. While incarcerated at
Douglas County Jail, on January 1, 2016, plaintiff was placed
in segregation by defendants, identified by plaintiff as
guards numbered OSN 1520 and OSN 1304. Id. at 6.
Plaintiff claims that the walls of the cell were covered in
dried spit and the toilet was clogged. Id. at 9.
Plaintiff states that he was again placed in segregation by
defendants on March 23, 2016, and that his cell walls were
covered in human feces that caused him to vomit. Id.
September 26, 2016, plaintiff filed his complaint. Docket No.
1. Plaintiff brings two claims for cruel and unusual
punishment in violation of the Eighth Amendment. Docket No.
17 at 9-10; see also Docket No. 20. On May 9, 2017,
defendants filed a motion to dismiss. Docket No. 28. After
plaintiff did not respond by the default deadline,
see D.C.COLO.LCivR 7.1(d) (“21 days”),
the magistrate judge ordered plaintiff to respond by
September 15, 2017. Docket No. 34. Plaintiff did not do so,
instead filing a motion for appointment of counsel. Docket
No. 35. The magistrate judge granted plaintiff's motion
for appointment of counsel and extended plaintiff's
deadline to respond to the motion to dismiss until December
20, 2017. Docket No. 37. The magistrate judge's order
reminded plaintiff of his continuing obligations pending pro
bono counsel accepting his case:
The pro se litigant is advised that there is no guarantee
that [Civil Pro Bono] Panel members will undertake
representation in every case selected for pro bono
representation. The pro se litigant is further cautioned
that, until appointed counsel enters an appearance,
the litigant is responsible for all scheduled matters,
including hearings, depositions, motions, and trial.
It remains Plaintiff's legal obligation to comply with
the Federal Rules of Civil Procedure, the Local Rules in this
District, and all orders of this Court. See Green v.
Dorrell, 969 F.2d 915, 917 (10th Cir. 1992).
Docket No. 37 at 2 (emphasis in original). The Clerk of the
Court was unable to secure representation for plaintiff
through the civil pro bono program and, on December 12, 2017,
plaintiff filed another motion for appointment of counsel.
Docket No. 42. Plaintiff did not respond to the motion to
dismiss by the twice-extended deadline. On February 27, 2018,
plaintiff still had not responded to the motion to dismiss
and the magistrate judge recommended dismissal. Docket No.
Court must “determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3). An objection is
“proper” if it is both timely and specific.
United States v. One Parcel of Real Property Known as
2121 East 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996).
To be sufficiently specific, an objection must
“enable the district judge to focus attention on
those issues-factual and legal-that are at the heart of the
parties' dispute.” See Id. at 1059
(quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)).
In the absence of a proper objection, the Court may review a
magistrate judge's recommendation under any standard it
deems appropriate. See Summers v. Utah, 927 F.2d
1165, 1167 (10th Cir. 1991); see also Thomas, 474
U.S. at 150 (“[i]t does not appear that Congress
intended to require district court review of a
magistrate's factual or legal conclusions, under a de
novo or any other standard, when neither party objects to
plaintiff filed a timely objection to the Recommendation, he
does not address the basis for the Recommendation.
See Docket No. 47. In particular, plaintiff does not
address the substance of defendants' motion to dismiss or
his failure to respond to the motion to dismiss. Rather,
plaintiff alleges a variety of discriminatory conduct by
Douglas County Jail corrections officers that does not form
the basis for his claims in this lawsuit, id. at
2-5, and discusses loss of commissary funds and poor medical
treatment that formed the basis of claims previously
dismissed as frivolous. Id. at 5-7; see
also Docket No. 20 at 4-5. Because plaintiff does not
specifically object to the magistrate judge's grounds for
recommending that his claims be dismissed and his general
objection is insufficient to require the Court to conduct de
novo review of the Recommendation, the Court determines that
de novo review is not required. Cf. One Parcel of Real
Prop. Known as 2121 E. 30th St., 73 F.3d at 1060
(holding general objections are insufficient to avoid waiver,
but that the district court may conduct de novo review in its
matter, the Court has reviewed the Recommendation to satisfy
itself that there is “no clear error on the face of the
record.” Fed.R.Civ.P. 72(b), Advisory Committee
Notes. Plaintiff fails to explain why he never responded to
the motion to dismiss despite two lengthy extensions. Docket
No. 47. The magistrate judge reminded plaintiff of his
obligations to comply with the Federal Rules and court orders
until counsel entered an appearance, but he did not do so.
See Docket No. 37 at 2. Dismissal with prejudice is
warranted because of plaintiff's repeated failures to
comply with court orders and deadlines. The Court finds no
clear error with respect to Magistrate Judge Mix's
recommendations and will adopt them. See Fed. R.
Civ. P. 41(b); D.C.COLO.LCivR 41.1. The Court will therefore
dismiss plaintiff's claims.
dismissal of plaintiff's claims resolves this lawsuit,
the Court will deny defendants' motion to strike as moot.
See Docket No. 49.
foregoing reasons, it is
that the Recommendation of Magistrate Judge [Docket No. 45]
is ACCEPTED. It is further
that plaintiff's claims are dismissed with prejudice. It
that defendants' Motion to Strike or, in the Alternative,
Response to Plaintiff's Objection to the Magistrate's
Recommendation for Dismissal ...