Opinion
Civil Action No. 18-cv-01456-DDD-NYW
02-13-2020
TORY HAMMOND, Plaintiff, v. CLINTON WENHOLZ, and DEPUTY CARTELLI, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the court pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated October 25, 2018 [#16], and Plaintiff Tory Hammond's ("Plaintiff" or "Mr. Hammond") third unexplained absence from a court-ordered Status Conference that this court held on February 11, 2020, see [#120]. For the following reasons, this court respectfully RECOMMENDS that this civil action be DISMISSED without prejudice pursuant to D.C.COLO.LCivR 41.1 given Plaintiff's failure to prosecute and comply with repeated court orders, and further RECOMMENDS that the pending Motion for Summary Judgment [#117] be DENIED AS MOOT, subject to re-filing if appropriate.
BACKGROUND
This court has discussed the background of this matter in its prior Orders, e.g., [#22; #33; #42; #50; #63], and therefore limits its discussion here to only the most salient facts. Plaintiff initiated this action by filing his pro se prisoner Motion to Intent to Sue on June 11, 2018. Following orders to cure deficiencies, Plaintiff filed an Amended and Second Amended Complaint. See [#6; #13]. His operative Second Amended Complaint alleges violations of his constitutional rights by Defendants Wenholz and Garrette (now Cartelli) for cruel and unusual punishment. See [#13]. The Honorable Gordon P. Gallagher granted Plaintiff leave to proceed in forma pauperis, see [#9], and the Honorable Lewis T. Babcock drew Plaintiff's two cruel and unusual punishment claims, while dismissing Plaintiff's purported First Amendment claim, to the Honorable R. Brook Jackson (later reassigned to the Honorable Daniel D. Domenico) and the undersigned Magistrate Judge. See [#14].
Relevant here, in December 2018, returns of service for Defendants were entered on the court's docket. [#19; #20]. Only Defendant Wenholz was successfully served; Defendant Garrette was not. On February 15, 2019, given the Parties' failure to appear for the court-ordered Status Conference, the undersigned issued an Order to Show Cause directing the Parties to respond with an explanation for their absences. See [#22]. Following their respective Responses, the undersigned discharged the Order to Show Cause, set a response deadline for Defendant Wenholz, and reset a Status Conference for April 16, 2019. See [#33]. Defendant Wenholz filed his Answer to Plaintiff's Second Amended Complaint on March 25, 2019. See [#38].
On April 17, 2019, the undersigned issued a Second Order to Show Cause given Plaintiff's failure to appear at the April 16 Status Conference, directing Mr. Hammond to show cause as to why this court should not recommend dismissal of Defendant Garette for failure to timely serve under Rule 4(m) of the Federal Rules of Civil Procedure and dismissal of Plaintiff's remaining claims against Defendant Wenholz for failure to prosecute. See [#42]. The Second Order to Show Cause warned Mr. Hammond that "[c]onclusory allegations that unknown forces prevented his participation are not enough, and the court will be similarly disinclined to view Plaintiff's change of facilities as a sufficient cause." [Id. at 4]. Mr. Hammond responded on May 6, 2019, requesting a list of the deputies that transported him from Gilpin County to identify the proper Defendant and stating that his move from Boulder County Jail to another facility was the reason for his absence. See [#49]. The undersigned discharged the Second Order to Show Cause, but warned Mr. Hammond that
For the second time, the court will accept Mr. Hammond's representations, discharge the [Order to Show Cause], and set a further Status Conference. But the court cautions Mr. Hammond that it is charged with the just, speedy and economical resolution of the matters before it, Fed. R. Civ. P. 1, and a third consecutive unexplained absence may result in a Recommendation of dismissal without prejudice without a third Order to Show Cause or other notice.[#50 at 2 (footnote omitted) (emphasis in original)].
The Order Discharging the Second Order to Show Cause reset a Status Conference for May 31, 2019. See [#50]. At the May 31 Status Conference, this court set a pre-trial discovery schedule for this matter and ordered defense counsel to provide Plaintiff and the court with a copy of the transport record so that Mr. Hammond could identify Defendant Garette for purposes of service. See [#53]. Defense counsel provided the court with a copy of the transport record on June 11, 2019. See [#56; #56-1]. The transport record revealed that Deputy Cartelli was the other deputy involved in the transportation of Plaintiff; Deputy Cartelli was served and answered the Second Amended Complaint on January 24, 2020. See [#113].
Following service on Deputy Cartelli, the undersigned set a Status Conference for February 12, 2020. See [#111]. The court contemporaneously mailed notice of this Status Conference to Mr. Hammond at his current address on January 21, 2020, see [#112], and there is no indication on the docket that Mr. Hammond did not receive this notice. On February 10, 2020, Defendants Wenholz and Cartelli filed their Motion for Summary Judgment. See [#117]. On February 11, 2020, defense counsel appeared for the Status Conference; Plaintiff, however, was not present and in no way contacted the court about resetting or rescheduling the conference. Given Mr. Hammond's repeated failures to appear for court-ordered Status Conferences or settings and his failures to comply with court orders, this Recommendation to dismiss this matter for failure to prosecute follows.
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.D.C.COLO.LCivR 41.1. The court cannot and does not act as an advocate for a pro se party, see Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998), and 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). Indeed, "[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." Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). When issuing sanctions for failure to prosecute, "a district court may, without abusing its discretion, enter such an order without attention to any particular procedures." Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007).
Here, this court concludes that Mr. Hammond's repeated failures to appear for court-ordered settings and his repeated failures to comply with court orders necessitates dismissal of this action without prejudice for failure to prosecute. And this court warned Mr. Hammond in no uncertain terms that "a third consecutive unexplained absence may result in a Recommendation of dismissal without prejudice without a third Order to Show Cause or other notice." [#50 at 2 (emphasis in original)]. Yet, Mr. Hammond again did not appear for a court-ordered Status Conference, which the court mailed notice of to Mr. Hammond approximately three weeks ahead of the conference, with clear instructions for Mr. Hammond's case manager to facilitate Mr. Hammond's participation in the Status Conference. There is no indication that Mr. Hammond did not receive this notice, and he did not otherwise attempt to contact the court about needing to reschedule or set the February 11 Status Conference. Accordingly, dismissal without prejudice pursuant to D.C.COLO.LCivR 41.1 for failure to prosecute and comply with court orders is warranted.
This court notes that Mr. Hammond has similarly failed to appear in his additional two civil suits pending before this court. See Hammond v. Koger et al., Civil Action No. 18-cv-00577-DDD-NYW [#59]; Hammond v. Nagle et al., Civil Action No. 18-cv-00579-DDD-NYW [#73].
Similarly, there is no indication on the dockets of his other civil actions pending in this court that Mr. Hammond is not receiving mail from the court. See generally, Hammond v. Koger et al., Civil Action No. 18-cv-00577-DDD-NYW; Hammond v. Nagle et al., Civil Action No. 18-cv-00579-DDD-NYW.
Based on the foregoing, this court also respectfully RECOMMENDS that Defendant Wenholz and Cartelli's Motion for Summary Judgment 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).
CONCLUSION
Accordingly, 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, comply with Orders of the court, and this District's Local Rules of Civil Practice; and
(2) Defendants' Motion for Summary Judgment [#117] 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, conclusions of law, 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).
A copy of this Recommendation shall be sent to:
Tory Hammond #184396
Fremont Correctional Facility (FCF)
P.O. Box 999
Canon City, CO 81215-0999 DATED: February 13, 2020
BY THE COURT:
/s/_________
Nina Y. Wang
United States Magistrate Judge