United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE
Nina
Y. Wang Magistrate Judge
This
matter comes before the court on the Order to Show Cause
dated September 25, 2019, stemming from Plaintiff Nicholas
McAllister-Ziegler's (“Plaintiff” or
“Mr. McAllister-Ziegler”) failure to appear for
the court-ordered Status Conference set for September 25,
2019. [#42]. The undersigned Magistrate Judge considers the
matter pursuant to 28 U.S.C. § 636(b) and the Order
Referring Case dated May 10, 2019, [#10]. For the following
reasons, I respectfully RECOMMEND that this
civil action and Plaintiff's Second Amended Complaint
[#31] be DISMISSED without prejudice for
failure to prosecute under D.C.COLO.LCivR 41.1 and for
Plaintiff's failure to comply with this District's
Local Rules of Civil Practice and Orders of the court.
BACKGROUND
Plaintiff
initiated this civil action by filing his pro se prisoner
Complaint in the District Court of Denver County on or about
March 26, 2019. See [#5]. According to Plaintiff,
Defendants violated his Eighth Amendment rights, and his
Complaint asserted a single claim for deliberate
indifference. See generally [#5]. On May 8, 2019,
Defendants removed this civil action from the District Court
for the County of Denver, invoking federal subject matter
jurisdiction pursuant to 28 U.S.C. § 1331. See
[#1].
On July
8 and 10, 2019, the court received notice that
Plaintiff's mail was being returned to the court as
undeliverable, see [#32; #33], prompting this court
to direct the Clerk of the Court to update Plaintiff's
mailing address as indicated in his Second Amended Complaint,
see [#31]. The court then re-sent its previous
filings to Mr. McAllister-Ziegler at the updated mailing
address, 4101 Pecos Street, Denver, Colorado 80211.
See [#36]. On July 19, 2019, this court conducted a
Status Conference, at which Plaintiff was not present, but
given the recent update to Mr. McAllister-Ziegler's
mailing address, this court set a further Status Conference
for September 25, 2019, rather than issue an Order to Show
Cause. See [#37].
Plaintiff
failed to appear for the September 25, 2019 Status
Conference. At the time, the court's filings were not
returned undeliverable to Mr. McAllister-Ziegler, and thus
this court presumed Plaintiff had adequate notice of the
Status Conference. However, shortly after the Status
Conference, the court's Order [#39] on the pending
Recommendation [#38] to deny Plaintiff's Motion for
Remand was returned undeliverable with the notation,
“Return to Sender. Attempted - Not Known. Unable to
Forward.” [#41]. Since filing his Second Amended
Complaint, Plaintiff has not informed the court of any change
in his mailing address. And given Plaintiff's failure to
appear at the Status Conference, this court issued an Order
to Show Cause for lack of prosecution.
On
October 8, 2019, this court's Order to Show Cause [#42]
was returned undeliverable, with the notation “Return
to Sender. Not Deliverable as Addressed. Unable to
Forward.” [#47]. To date, Plaintiff has yet to update
his mailing address with the court, and the Order to Show
Cause specifically advised Mr. McAllister-Ziegler that his
“failure to comply with this Order may result
in this court recommending dismissal of this
action.” [#42 at 3 (emphasis in original)].
ANALYSIS
Local
Rule of Civil Practice 41.1, D.C.COLO.LCivR, provides:
A judicial officer may issue an order to show cause why a
case should not be dismissed for lack of prosecution or for
failure to comply with these rules, the Federal Rules of
Civil Procedure, or any court order. If good cause is not
shown within the time set in the show cause order, a district
judge or a magistrate judge exercising consent jurisdiction
may enter an order of dismissal with or without prejudice.
Further,
D.C.COLO.LAttyR 5(c) requires pro se parties to maintain
current contact information and states that “Notice 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.” A party's pro se
status does not exempt her from complying with the procedural
rules that govern all civil actions filed in this District,
namely, the Federal Rules of Civil Procedure and the Local
Rules of Practice for the District of Colorado. See
Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2
(10th Cir. 2008). In addition, the court plays a neutral role
in the litigation process and cannot assume the role of an
advocate for the pro se party. Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 672 (10th Cir.1998).
As
mentioned, Plaintiff has yet to update his mailing address
with the court, resulting in the court's filings to be
returned undeliverable. In addition, Plaintiff failed to
appear for the court-ordered Status Conference set for
September 25, 2019, and the Order to Show Cause specifically
advised Mr. McAllister-Ziegler that his failure to respond
may result in the court recommending dismissal of this action
without prejudice. Having not received a response and given
Mr. McAllister-Ziegler's failure to abide by court Orders
and this District's Local Rules of Civil Procedure and
his lack of diligence in litigating this matter, dismissal of
this civil action for lack of prosecution is warranted.
See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d
1158, 1161 (10th Cir. 2007) (providing that when dismissing a
case without prejudice, “a district court may, without
abusing its discretion, enter such an order without attention
to any particular procedures.”); see also Reed v.
Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (“A
district court undoubtedly has discretion to sanction a party
for failing to prosecute or defend a case, or for failing to
comply with local or federal procedural rules.”).
CONCLUSION
For the
reasons stated herein, this court ...