United States District Court, D. Colorado
REPORT & RECOMMENDATION ON DEFENDANT'S MOTION
TO DISMISS FOR PLAINTIFF'S FAILURE TO PROSECUTE (Docket
MICHAEL J. WATANABE United STATES MAGISTRATE JUDGE
Plaintiff is an inmate at Florence
ADX, suing under 42 U.S.C. § 1983. Plaintiff initially
brought claims against the Bureau of Prisons
(“BOP”) and two individuals (Docket No. 1). On
May 4, 2015, Judge Babcock dismissed Plaintiff's claims
against the individual defendants pursuant to 28 U.S.C.
§ 1915A(b) and the case was reassigned to Judge Martinez
and the undersigned (Docket No. 5). On February 4, 2016, the
undersigned recommended that Plaintiff's claims against
the BOP be dismissed pursuant to Fed.R.Civ.P. 12(b)(6)
(Docket No. 42). On March 24, 2016, Judge Martinez adopted
the Recommendation and dismissed Plaintiff's claims
(Docket No. 50). Judge Martinez further noted that
“[i]f Plaintiff wishes to move for leave to file an
amended complaint, his motion must be postmarked no later
than April 30, 2016 . . . .” (Id. at 17).
Plaintiff filed two motions seeking leave to amend, which
were granted (Docket Nos. 55 & 62) and Plaintiff's
Amended Complaint was filed on May 10, 2016 (Docket No. 63).
In the Amended Complaint, Plaintiff again named the BOP as a
Defendant, and added eleven individual Defendants as well as
“ADX Super-Max Prison.” Defendants sought
dismissal and the undersigned recommended that all claims
other than Plaintiff's claim against Defendant BOP
brought under the Religious Freedom Restoration Act
(“RFRA”) be dismissed (Docket No. 132). Judge
Martinez rejected the undersigned's Recommendation, but
ultimately dismissed all claims other than Plaintiff's
RFRA claim against Defendant BOP (Docket No. 144).
Accordingly, Plaintiff's only remaining claim is his RFRA
claim against Defendant BOP.
Judge Martinez ruled on that Recommendation, the undersigned
entered a Scheduling Order (Docket No. 160) and discovery
regarding Plaintiff's RFRA claim commenced. Defendant
served written discovery requests on Plaintiff, but Plaintiff
did not respond. On November 15, 2017, the undersigned
granted (Docket No. 207) Defendant's Motion to Compel
Responses to First Set of Written Discovery (Docket No. 196).
In that Minute Order, the Court “ORDERED that Plaintiff
shall respond to Defendant's First Set of Interrogatories
and Requests for Production of Documents to Plaintiff (Docket
No. 196-1) on or before December 15, 2017.” (Docket No.
207 at 1.) The Court “further ORDERED that the Clerk of
the Court shall mail a copy of Defendant's First Set of
Interrogatories and Requests for Production of Documents to
Plaintiff (Docket No. 196-1) with this Minute Order when it
is sent to Plaintiff.” (Id.) In addition the
Court made clear to Plaintiff that failure to comply could
result in sanctions:
Plaintiff is warned that failure to comply with this
Minute Order and/or his discovery obligations may result in
sanctions including, but not limited to, all sanctions listed
in Fed.R.Civ.P. 37(b) and 37(d).
(Id.) (emphasis in original). Plaintiff objected to
the November 15, 2017 Minute Order (Docket No. 214). That
objection was overruled by Judge Martinez on February 27,
2018 (Docket No. 236). Judge Martinez found Plaintiff's
objection to be untimely, but considered the merits and
declined to overturn the November 15, 2017 Minute Order.
Judge Martinez ordered Plaintiff to respond to
Defendant's First Set of Interrogatories and Requests for
Production of Documents no later than March 23, 2018 (Docket
No. 236 at 6). Judge Martinez warned Plaintiff that
[f]ailure to respond to Defendant's discovery requests as
ordered may lead to additional sanctions, to and including
dismissal of Plaintiff's claims under Federal Rule of
Civil Procedure 41(b) for failure to prosecute, failure to
comply with Court Rules, and/ or failure to comply with the
(Docket No. 236 at 7). Plaintiff filed a motion for
reconsideration of Judge Martinez's Order (Docket No.
242), which remains pending. In the instant motion (Docket
No. 243), Defendant avers that Plaintiff did not respond to
the discovery requests by the March 23, 2018 deadline and,
therefore, seeks dismissal with prejudice under Rule 41.
Rule 41(b) of the Federal Rules of Civil Procedure provides
in pertinent part:
If the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the
action or any claim against it. Unless the dismissal order
states otherwise, a dismissal under this subdivision (b) and
any dismissal not under this rule-except one for lack of
jurisdiction, improper venue, or failure to join a party
under Rule 19- operates as an adjudication on the merits.
Fed. R. Civ. P. 41(b). Furthermore, Rule 16(f) provides in
pertinent part that “[o]n motion or on its own, the
court may issue any just orders, including those authorized
by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: .
. . (C) fails to obey a scheduling or other pretrial
order.” Fed.R.Civ.P. 16(f). Rule 37(b)(2)(A)
(ii)-(vii), which is referenced in Rule 16(f), permits the
(ii) prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from introducing
designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order ...