United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE
Kristen L. Mix, United States Magistrate Judge
This
matter is before the Court on Plaintiff's Motion
for an Administrative Stay Toward a Settlement Between the
Parties [#40][1] (the “Motion”). Plaintiff, who
proceeds pro se[2] as an inmate at the San Carlos
Correctional Facility, filed the Motion [#40] on October 15,
2018. Defendant's deadline to respond to the Motion [#40]
has elapsed and no response has been filed. See
D.C.COLO.LCivR 7.1(d). As a result, the Court treats the
Motion [#40] as unopposed. See Walter v. HSM
Receivables, No. 13-cv-00564-RM-KLM, 2014 WL 5395197, at
*1 (D. Colo. Oct. 23, 2014) (“The Motion is essentially
unopposed as no response has been filed by
Defendants.”); Armstrong v. Swanson, No.
08-cv-00194-MSK-MEH, 2009 WL 1938793, at *1 (D. Colo. July 2,
2009) (noting that Plaintiff did not file a response to the
motion for sanctions and “deem[ing] the Plaintiff to
have defaulted on th[e] motion.”).
In the
Motion [#40], Plaintiff requests that the Court impose an
“administrative stay” on these proceedings for a
period of seventy days so that the parties may reach a
settlement of this case. Given the nature of Plaintiff's
request and the circumstances described below, the Court
construes Plaintiff's request for an
“administrative stay” as a request to
administratively close this case pending settlement
negotiations between the parties.
Plaintiff
states that “[i]n recent months the [Colorado
Department of Corrections] has begun to meet certain
complained-of medical problems suffered by [Plaintiff]
[i]ncluding providing hi[m] medical shoes and scheduling him
for medical evaluation for Advanced Foot Ortho[t]ics.”
Motion [#40] at 1. Plaintiff further states that
“[a]s a result of these actions[, ] Plaintiff is now
willing to enter into full settlement negotiations with
Defendant through his counsel.” Id. Finally,
Plaintiff notes that “due to problems with
Plaintiff's law library access[, ] it seems prudent for
Plaintiff to explore a possible conclusion to the litigation
at this time.” Id.
The
Tenth Circuit has construed an administrative closure to be
“the practical equivalent of a stay.” Quinn
v. CGR, 828 F.2d 1463, 1465 & n.2 (10th Cir.1987).
In Lehman v. Revolution Portfolio LLC, 166 F.3d 389
(1st Cir. 1999), the First Circuit explained the nature of
administrative closure as follows:
Administrative closings comprise a familiar, albeit essential
ad hoc, way in which courts remove cases from their active
files without making any final adjudication. The method is
used in various districts throughout the nation in order to
shelve pending, but dormant, cases.
Id. at 392 (internal citations and quotation marks
omitted). The First Circuit further explained that “an
administrative closing has no effect other than to remove a
case from the court's active docket and permit the
transfer of records associated with the case to an
appropriate storage repository [and] . . . d[oes] not
terminate the underlying case, but, rather, place[s] it in
inactive status until such time as the judge, in his
discretion or at the request of a party, cho[o]se[s] either
to reactivate it or to dispose of it with finality.”
Id.
Based
on the foregoing, the Court is inclined to recommend granting
Plaintiff's request to administratively close this case
for three reasons. First, it is not entirely clear whether
Plaintiff even seeks to continue litigating this case any
further given that he appears satisfied that his medical
issues are now being adequately addressed. Second, to the
extent Plaintiff's claims have not already been
addressed, Plaintiff clearly wishes to resolve the entirety
of his case through settlement. In light of this, the Court
is mindful that Plaintiff's incarceration will likely
limit his ability to communicate with Defendant regarding
settlement. Thus, the time required for settlement
negotiations to occur is uncertain. Third, because no
response has been filed to Plaintiff's Motion [#40],
there is no indication that Defendant opposes settlement
negotiations or administrative closure at this time.
Accordingly, based on Plaintiff's statements and the lack
of any opposition thereto, IT IS RESPECTFULLY
RECOMMENDED that Plaintiff's Motion
[#40] be GRANTED and that this case be
administratively closed pursuant to
D.C.COLO.LCivR 41.2.
IT IS
FURTHER RECOMMENDED that, if the above
recommendation is adopted, the parties be ordered to file,
within seventy days of the administrative
closure, either: (1) a motion to reopen this case
for good cause, (2) a motion for voluntary dismissal, or (3)
a status report regarding settlement negotiations.
IT IS
HEREBY ORDERED that pursuant to Fed.R.Civ.P.
72, the parties shall have fourteen (14) days after service
of this 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
Dep't 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).
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Notes:
[1] “[#40]” is an example of
the convention the Court uses to identify the docket number
assigned to a specific paper by the Court's case
management and electronic case filing system (CM/ECF). This
convention is used throughout this Recommendation.
[2] The Court must construe the filings of
pro se litigants liberally. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). However, the Court should
not be the pro se litigant's advocate, nor should the
Court “supply additional factual allegations to round
out [the pro se litigant's] complaint or construct a
legal theory on [his] behalf.” See Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing
Hall, 935 F.2d at 1110). In addition, pro se
...