Opinion
Civil Action No. 19-cv-00327-RM-NYW
05-29-2019
JOHN S. ANTONOPOULOS, Plaintiff, v. RACHEL OLGUIN-FRESQUEZ, CYNTHIA JONES, CAROLYN WHIPPO, STEPHEN POTTS, BRYAN GARRETT, RANDY WILLIAMS, STEVE GERMILLION, STANTON GOULD, KEITH MONTAG, JOHN BRYAN, STEPHANIE FITZGERALD, RODRIGUEZ, JON WALKER, DAVE STRALEY, JOEL BUEHRLE, CHARITY-GRIMSLEY-HINKLEY, Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the court on the Order to Show Cause dated May 7, 2019. See [#43]. This court considers this matter pursuant to 28 U.S.C. § 636(b) and the Order Referring Case dated February 8, 2019 [#4]. For the following reasons, this court respectfully RECOMMENDS that this civil action be DISMISSED without prejudice pursuant to D.C.COLO.LCivR 41.1 for Plaintiff John S. Antonopoulos's ("Plaintiff" or "Mr. Antonopoulos") failure to prosecute, and further that the pending Motions to Dismiss be DENIED AS MOOT, subject to re-filing if appropriate; and this court ORDERS that the Motions to Stay are GRANTED pending the resolution of this Recommendation.
BACKGROUND
Plaintiff initiated this action by filing his pro se Complaint on February 7, 2019, see [#1], and he has since filed an Amended Complaint as a matter of course, see [#6]. As Defendants, Plaintiff names several state actors, including state court judges, officers of the Clear Creek County District Attorney's office, officers of the Clear Creek Sheriff's Department, and a state health professional, alleging that each violated Plaintiff's constitutional rights when Plaintiff was arrested and prosecuted in Clear Creek County. See generally [#6]. This court originally set a Status Conference for April 16, 2019, but given the extension of time granted to several Defendants to respond or answer to the Amended Complaint, the undersigned reset the Status Conference for May 6, 2019. See [#16]. There are currently four Motions to Dismiss pending before this court for recommendation which represent all the named Defendants' responses to the Amended Complaint, see [#28; #30; #31; #33], as well as three Motions to Stay proceedings until the court disposes of the Motions to Dismiss, see [#36; #38; #40].
On the morning of May 6, Mr. Antonopoulos did not appear for the Status Conference. See [#42]. This court contacted Mr. Antonopoulos directly, and he explained that he would not participate in the Status Conference. See [id.]. Thus, the court apprised defense counsel on the record that it would not set a schedule in this matter until after Plaintiff has responded to and discharged a forthcoming Order to Show Cause. See [id.]. This court also provided Plaintiff until May 19 and 24, 2019, respectively, to respond to the Motions to Dismiss and Motions to Stay. See [#35; #42]. And on May 7, 2019, this court issued an Order to Show Cause for lack of prosecution, directing Mr. Antonopoulos to show cause in writing why this court should not recommend dismissal of this matter given Plaintiff's failure to prosecute and comply with an Order of the court. See [#43]. Mr. Antonopoulos has not responded to the Order to Show Cause in the time provided.
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.The Order to Show Cause directed Mr. Antonopoulos to respond in writing by May 24, 2019, articulating why this court should not recommend dismissal of this action for failure to prosecute and to appear for the court-ordered Status Conference. See [#43]. This court specifically advised Mr. Antonopoulos that his "failure to comply with this Order to Show Cause will result in this court recommend[ing] dismissal of this action." [Id. at 3 (emphasis in original)].
Mr. Antonopoulos has not responded to the Order to Show Cause. Moreover, nothing on the docket indicates that the court's Orders are not deliverable to Plaintiff at the address provided. Thus, this court presumes that Mr. Antonopoulos received proper notice of the Order to Show Cause yet has not responded in the time provided, warranting dismissal of this civil action for lack of prosecution. 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.").
Also pending before this court are four Motions to Dismiss and three Motions to Stay this matter. See [#28; #30; #31; #33; #36; #38; #40]. Given Mr. Antonopoulos's failure to respond to the Order to Show Cause and this court's conclusion that dismissal without prejudice is appropriate, this court respectfully RECOMMENDS that the Motions to Dismiss be DENIED AS MOOT, subject to re-filing if appropriate. See Echenique v. Goodwill Indus. of Denver, No. 13CV00556-PAB-MJW, 2014 WL 459776, at *6 (D. Colo. Feb. 4, 2014) (recommending that the pending motions to dismiss be denied as moot given the court's conclusion that dismissal for failure to prosecute was warranted). Relatedly, because of this court's Recommendation to dismiss this civil action for failure to prosecute and because the Motions to Stay involve questions of immunity, this court GRANTS the Motions to Stay pending the resolution of this Recommendation. See Burkitt v. Pomeroy, No. 15-CV-02386-MSK-KLM, 2016 WL 696107, at *1 (D. Colo. Feb. 22, 2016) ("Questions of jurisdiction and immunity should be resolved at the earliest stages of litigation, so as to conserve the time and resources of the Court and the parties."); Chesser v. Dir. Fed. Bureau of Prisons, No. 15-CV-01939-NYW, 2016 WL 1170448, at *6 (D. Colo. Mar. 25, 2016) (noting that the court has discretion to stay discovery, and concluding that a stay was warranted "until the court and the Parties have a firm understanding of what issues will proceed in this matter.").
CONCLUSION
For the reasons stated herein, this court respectfully RECOMMENDS that:
(1) This civil action be DISMISSED without prejudice pursuant to D.C.COLO.LCivR 41.1 for Plaintiff's failure to prosecute and failure to comply with Orders of the court; and
(2) That Defendants' Motions to Dismiss [#28; #30; #31; #33] be DENIED AS MOOT, subject to re-filing if appropriate.
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and 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 Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
IT IS FURTHER ORDERED that:
(1) The Motions to Stay [#36; #38; #40] are GRANTED, and this matter shall be STAYED pending the resolution of this Recommendation; and
(2) A copy of this Order shall be sent to:
DATED: May 29, 2019John S. Antonopoulos
2000 West 92nd Avenue
Federal Heights, CO 80260
BY THE COURT:
/s/_________
Nina Y. Wang
United States Magistrate Judge