United States District Court, D. Colorado
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE.
This
matter is before the Court on its Order to Show Cause
[#42][1] issued on January 10, 2019. The Court
stated in the Order to Show Cause:
Although Plaintiff is proceeding in this lawsuit without an
attorney, he bears the responsibility of prosecuting his case
with due diligence. The Court must liberally construe pro se
filings; however, pro se status does not excuse the
obligation of any litigant to comply with the same rules of
procedure that govern other litigants. See Green v.
Dorrell, 969 F.2d 915, 917 (10th Cir. 1992); see
also Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994).
Plaintiff's current address with the Court shows that he
is incarcerated at Sterling Correctional Facility. The
Court's review of the electronic docket in this case
demonstrates that Plaintiff has filed nothing since his
Motion for Summary Judgment [#20], dated by him on May 30,
2018, at which time he indicated that he was still
incarcerated at Sterling Correctional Facility. However,
Defendants assert in their July 27, 2018 Response to
Plaintiff's Motion for Summary Judgment [#35] that
Plaintiff is now incarcerated at Buena Vista Correctional
Facility. Response [#35] at 11. Defendants further
provide evidence in connection with their October 29, 2018
Motion for Summary Judgment [#39] that Plaintiff is at Buena
Vista Correctional Facility. See [#39-8]. The
Court's January 10, 2019 independent review of the
Colorado Department of Corrections Offender Search,
https://www.doc.state.co.us/oss/, indicates that Plaintiff
does appear to be incarcerated at Buena Vista Correctional
Facility. Although the Court has issued a number of orders in
this case since May 2018, no mail sent to Plaintiff at
Sterling Correctional Facility has been returned to the Court
as undeliverable.
Pursuant to the Court's Local Rules, specifically
D.C.COLO.LCivR 5.1(c), “[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.” Plaintiff was directly warned at the
April 4, 2018 Scheduling Conference that if his mailing
address changes while his case is pending, he must provide
the Clerk's office with his new address. See
[#19-1] at 1.
On November 29, 2018, the Court issued a Minute Order [#41]
ordering Plaintiff to file a Notice providing his current
mailing address no later than December 17, 2018. Plaintiff
was warned that “[f]ailure to comply with this Order
may result in sanctions, up to and including the dismissal of
this lawsuit for failure to prosecute and failure to comply
with a Court order.”
In the same November 29, 2018 Minute Order [#41], the Court
noted that Plaintiff has not filed a Response to
Defendants' Motion for Summary Judgment [#39], filed on
October 29, 2018. Pursuant to D.C.COLO.LCivR 7.1(d),
“[t]he responding party shall have 21 days after the
date of service of a motion, or such lesser or greater time
as the court may allow, in which to file a response.”
The Court noted that Plaintiff's time to respond as
provided by the Local Rule had elapsed. However, the Court
provided Plaintiff with one last chance to respond to
Defendants' Motion for Summary Judgment [#39], permitting
him to file a response by December 21, 2018. To date,
Plaintiff has neither done so nor requested an extension of
time to do so.
As noted, Plaintiff has not contacted the Court formally or
informally since May 30, 2018. He has failed to prosecute his
case by failing to update his address, by failing to respond
to Defendant's Motion for Summary Judgment [#39], and by
failing to comply with the Court's November 29, 2018
Minute Order providing him with an opportunity to correct
these deficiencies. No. mail has been returned to the Court
as undeliverable. On the whole, it appears that Plaintiff no
longer has any desire to pursue his litigation in this case.
Thus,
the Court ordered Plaintiff to show cause in writing and
filed on the docket, as to why this case should not be
dismissed for his failure to prosecute this lawsuit and
comply with the Local Rules and Court orders. See,
e.g., Myers v. [No Named Defendant], No.
07-cv-02421-BNB, 2008 WL 608311 (D. Colo. Mar. 4, 2008)
(failure to communicate properly with Court, including
failure to inform Court of change of address, resulted in
dismissal without prejudice). Plaintiff was warned that
“[f]ailure to respond to this Order to Show Cause
will result in sanctions, up to and including the
dismissal of this lawsuit.” Given the uncertainly of
Plaintiff's current location, the Court ordered the Clerk
of Court to mail a copy of the Order to Show Cause to
Plaintiff at (1) his address currently on the electronic
docket, and (2) Taylor Moudy, #150369, Buena Vista
Correctional Facility, P.O. Box 2017, Buena Vista, Colorado
81211. The mailing sent to Buena Vista Correctional Facility
was returned as undeliverable, see [#43], but there
has been no return of the mailing sent to Sterling
Correctional Facility. The January 31, 2019 deadline for
Plaintiff to respond to the Order to Show Cause has passed
with no filing of any kind from Plaintiff.
It is
clear from this record that Plaintiff has no present
intention of seeking resolution of this matter on the merits.
Plaintiff has failed to update his contact information with
the Court and, thus, the Court and Defendant have no means of
contacting him in connection with this litigation. Further,
Plaintiff has disobeyed several direct orders from the Court
by failing to file a response to the Order to Show Cause
[#42], failing to update his address pursuant to Minute Order
[#41], and failing to file a Response to Defendants'
Motion for Summary Judgment [#39] pursuant to Minute Order
[#41]. May 30, 2018 was the date of the last mailing by
Plaintiff to the Court. These facts demonstrate that
Plaintiff has abandoned his lawsuit. Accordingly, IT IS
HEREBY ORDERED that the Order to Show Cause
[#42] is MADE ABSOLUTE
IT IS
FURTHER RECOMMENDED that Plaintiffs lawsuit
be DISMISSED without
prejudice.[2] See Banks v.
Katzenmeyer, 680 Fed.Appx. 721, 724 (10th Cir. 2017)
(stating that, if dismissal is without prejudice, the
Ehrenhaus factors need not be analyzed).
IT IS
FURTHER 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).
---------