United States District Court, D. Colorado
ORDER OF DISMISSAL
A. BRIMMER UNITED STATES DISTRICT JUDGE
matter is before the Court on the order to show cause [Docket
No. 25] entered by Magistrate Judge Michael E. Hegarty on
October 15, 2018. On June 28, 2018, plaintiff filed a pro se
prisoner complaint asserting violation of his rights under
the Eighth Amendment. Docket No. 1. Plaintiff filed an
amended complaint on July 13, 2018. Docket No. 6. On August
2, 2018, the magistrate judge entered an order setting a
status conference for October 10, 2018. Docket No. 11. On
September 6, 2018, the status conference was vacated and
reset for October 11, 2018. Docket No. 14. On September 17,
2018, the mailed notice of the order resetting the status
conference was returned as undeliverable. Docket No. 16. The
stamp on the outside of the envelope indicated that plaintiff
had been released from the Colorado State Penitentiary.
See Docket No. 16 at 1.
plaintiff failed to appear at the October 11, 2018 status
conference, the magistrate judge ordered defense counsel to
submit a status report with plaintiff's current contact
information on or before October 17, 2018. Docket No. 22.
Defendant filed his status report on October 15, 2018
stating, upon information and belief, that plaintiff was
“currently in the custody of the Pueblo Sheriff's
Office, 909 Court Street, Pueblo, Colorado 81003, where he
[was] being held for felony escape and a parole
violation.” Docket No. 24 at 2, ¶ 9. In light of
the information provided in the status report, the magistrate
judge issued an order directing plaintiff to show cause in
writing no later than November 5, 2018 why this case should
not be dismissed for failure to prosecute. Docket No. 25.
After receiving no response to the show cause order,
magistrate judge directed the Clerk of the Court to reassign
the case pursuant to D.C.COLO.LCivR 40.1(c)(2). See
Docket No. 28. The magistrate judge also recommended that the
case be dismissed without prejudice for failure to prosecute.
pro se status does not relieve him of the obligation to
diligently prosecute his case and “comply with the same
rules of procedure that govern other litigants.”
Marburger v. Estate of Newfeld, No.
14-cv-00971-PAB-KLM, 2015 WL 4035651, at *1 (D. Colo. June
30, 2015) (report and recommendation accepted) (citing
Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.
1992)). Not only has plaintiff failed to respond to the
Court's October 15, 2018 show cause order, but he also
has not complied with D.C.COLO.LCivR 5.1(c), which states
that “[n]otice of change of name, mailing address, or
telephone number of an unrepresented prisoner or party shall
be filed not later than five days after the change.”
41(b) of the Federal Rules of Civil Procedure provides:
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.
41(b) has “long been interpreted to permit courts to
dismiss actions sua sponte for a plaintiff's failure to
prosecute.” Rogers v. Andrus Transp. Servs.,
502 F.3d 1147, 1151 (10th Cir. 2007) (internal quotation
marks omitted). Given plaintiff's failure to respond to
the Court's show cause order or otherwise make any
contact with the Court since the filing of his amended
prisoner complaint on July 13, 2018, see Docket No.
28, the Court considers whether to dismiss this action for
failure to prosecute.
Tenth Circuit has enumerated five factors that a court should
weigh in determining whether to dismiss a case as a sanction:
“(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
quotation marks and citations omitted). The Court finds that
these factors weigh in favor of dismissal. Plaintiff has not
made any effort to contact the Court in almost four months.
His failure to provide the Court with updated contact
information indicates that he lacks an interest in resolving
this matter on the merits. Moreover, in light of
plaintiff's failure to respond to the Court's recent
orders or make any contact with the Court since July 2018,
any sanction short of dismissal would be ineffectual. It is
that plaintiff's first amended Prisoner Complaint [Docket
No. 6] is DISMISSED without prejudice. It is
that this case is closed.
A copy of the show cause order was also
sent to the Colorado State Penitentiary, see Docket
No. 27, and returned as undeliverable. The Court has
confirmed, however, that the order was sent both to the
Pueblo Sheriff's Office and to the Colorado State
Penitentiary. No. mail has been ...