Sayed v. Kautz

          ORDER ADOPTING AS MODIFIED NOVEMBER 8, 2018 RECOMMENDATION OF MAGISTRATE JUDGE DISMISSING WITHOUT PREJUDICE PLAINTIFF'S SOLE CLAIM AGAINST DEFENDANT KAUTZ AND THE DOE DEFENDANTS

          William J. Martínez United States District Judge

         This matter is before the Court on United States Magistrate Judge N. Reid Neureiter's Recommendation dated November 8, 2018 (the “Recommendation”; ECF No. 48), which recommended that this Court dismiss without prejudice Plaintiff Hazhar A. Sayed's (“Plaintiff”) sole claim against Defendants “Sgt. Kautz” (“Kautz”) and “Unknown John/Jane Doe, Corr. Officers” (“Doe Defendants”) based on Plaintiff's failure to prosecute and comply with court orders. (Id. at 3.) The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Plaintiff filed a timely Objection to the Recommendation (“Objection”; ECF No. 53).

         While the Recommendation was pending before this Court, Plaintiff filed a “Request for Ruling and/or Hearing on Plaintiff's Objection to Magistrate Judge's Recommendation” (“Request for Ruling”; ECF No. 64).

         For the reasons set forth below, the Recommendation is adopted as modified, Plaintiff's Objection is overruled, Plaintiff's Request for Ruling is granted, and Plaintiff's sole claim against Kautz and the Doe Defendants is dismissed without prejudice.

         I. LEGAL STANDARD

         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” An objection to a recommendation is properly made if it is both timely and specific. United States v. 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An objection is sufficiently specific if it “enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” Id. In conducting its review, “[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). Here, Plaintiff filed a timely objection to the Recommendation. (See ECF No. 53.) Therefore, this Court reviews the issues before it de novo.

         In considering the Recommendation, the Court is also mindful of Plaintiff's pro se status, and accordingly, reads his pleadings and filings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as advocate for Plaintiff, who must still comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Ledbetter v. City of Topeka, 318 F.3d 1183, 1188 (10th Cir. 2003).

         II. BACKGROUND

         Plaintiff is a state prisoner in the custody of the Colorado Department of Corrections (CDOC) and is currently incarcerated at the Buena Vista Correctional Facility. (ECF No. 46.) The events that gave rise to this lawsuit, however, occurred while Plaintiff was incarcerated at the Colorado State Penitentiary (“CSP”). (ECF No. 18.) According to Plaintiff, Defendants Kautz, “Sgt. Muller” (“Mueller”), “Sgt. Rampon” (“Rampone”), and the Doe Defendants (collectively, “Defendants”) were correctional officers at the CSP at the time of the alleged misconduct. (Id.)

         Plaintiff asserts that Defendants violated his First Amendment right of access to the courts by retaliating against him for filing grievances and lawsuits. (Id. at 5-8.) Plaintiff specifically alleges that on January 4, 2018, he went into the “attorney-client visiting-room” at the CSP to discuss with his attorney “grievances and pending lawsuits” that he had filed against various CSP correctional officers. (Id. at 6.) Upon entering the room, Plaintiff claims that Defendants “screamed” at him, saying that Plaintiff “was snitching on [certain CSP correctional officers] by filing grievances and lawsuits, and if [he] didn't stop, this is what would happen every time [Defendants] saw [him].” (Id. at 6-7.)

         Plaintiff asserts that Defendants then “used the intercom system in visiting-room at [CSP]” to call Plaintiff a “snitch, rat and sex-offender.” (Id. at 7.) Plaintiff alleges that Defendants did this “in retaliation for [Plaintiff] having filed grievances and lawsuits against [various CSP correctional officers].” (Id. at 7-8.) Moreover, Plaintiff claims that as a result of Defendants “falsely label[ing Plaintiff] as a snitch, rat, and sex-offender, ” the Defendants have caused him to be “approached and subjected to physical confrontation by [the Doe Defendants], staff member(s) and the other inmates, and possibly could lead to staff and inmates assaults and criminal charges against [Plaintiff].” (Id. at 7.) This lawsuit followed. (ECF No. 1.)

         III. Procedural History

         Plaintiff, acting pro se, initiated this action on April 20, 2018, by filing a Prisoner Complaint pursuant to 42 U.S.C. § 1983. (Id.) Plaintiff's currently operative complaint is his Third Amended Complaint. (ECF No. 18.)

         On August 22, 2018, the CDOC filed a Waiver of Service on behalf of Mueller and Rampone. (ECF No. 26.) The CDOC, however, did not waive service on behalf of Kautz or the Doe Defendants because Kautz was no longer a CDOC employee and the Doe Defendants had not been identified as current CDOC employees. (Id.) The next day, the Court ordered the United States Marshals to effect service on Kautz at his last known address (ECF No. 28), which was filed with the Court under restriction (ECF No. 29). The Return of Service filed by the United States Marshals on October 12, 2018, however, indicates that Kautz does not reside at the address provided. (ECF No. 39.) As of the date of this Order, neither Kautz or the Doe Defendants have been served with process.

         On October 22, 2018, the Magistrate Judge entered an Order to Show Cause. (ECF No. 43.) Specifically, the Magistrate Judge ordered that on or before November 21, 2018, Plaintiff must “(1) provide to the Court an updated address for Defendant Kautz so that the United States Marshall [sic] can effect service of process; (2) identify by name the John/Jane Doe Defendants; and/or (3) show cause why this case should not be dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m), 16(f), and/or 41(b) as against these Defendants.” (Id. at 3.)

         On October 29, 2018, Plaintiff filed a Response to the Order to Show Cause (“Response”; ECF No. 45). The Magistrate Judge reviewed Plaintiff's Response and issued his Recommendation on November 8, 2018. (ECF No. 48.) On March 15, 2019, Plaintiff filed a “Motion for Permission to file an Amended Complaint” ...