Summary
adopting recommendation holding that plaintiff's "failure to file a certificate of review pursuant to Colo. Rev. Stat. § 13-20-602 does not bar his Eighth Amendment claim"
Summary of this case from Burns v. LaurenceOpinion
Civil Action No. 06-cv-00625-WDM-CBS.
June 25, 2007
ORDER ON RECOMMENDATION OF MAGISTRATE JUDGE
This case is before me on the recommendation of Magistrate Judge Craig B. Shaffer (doc no. 45) that Plaintiff's Motion for Preliminary Injunction (doc no 27) be denied, that Defendants' Motion to Dismiss (doc no 29) be granted in part and denied in part, and that Plaintiff's complaint be dismissed because of Plaintiff's failure to pay his filing fees. Plaintiff filed an objection to the recommendation and therefore is entitled to de novo review. 28 U.S.C. § 636(b). For the reasons set forth below, I accept Magistrate Judge Shaffer's recommendation.
I have reviewed the pertinent portions of the record in this case, including the complaint, the motion to dismiss and Plaintiff's response, the motion for preliminary injunction and Plaintiff's response, the recommendation, and Plaintiff's objections. I agree with Magistrate Judge Shaffer that Plaintiff has not satisfied his burden for the issuance of a preliminary injunction, but dismissal of his complaint is not appropriate at this stage because he has adequately alleged facts demonstrating an entitlement to relief. Dismissal of the claims against Defendant Martin Sherrod is warranted.
Plaintiff's objections concern only the final issue in the recommendation — i.e, that his complaint be dismissed without prejudice because of his failure to make monthly payments on his filing fees or to show cause why he had no means to pay, despite warning from the court that dismissal could result. As noted in the recommendation, Plaintiff has made payments inconsistently and was twice ordered to make payments or to show cause. In his objection, Plaintiff asserts that he has been in contact with an individual in "the billing dept. of this Court" regarding billing arrangements, that Plaintiff's incarceration creates a hardship, and that Plaintiff has been relying on his mother to make payments for him. He argues that dismissal without prejudice will be an overly harsh sanction since the statute of limitations may bar refiling of his complaint. He appears to assert that he can pay the balance of his filing fees within 30 days.
Nevertheless, Plaintiff has failed to comply with three different court orders to pay or show cause. Indeed, after receiving the May 14, 2007 recommendation that his case be dismissed, Plaintiff requested 30 days within which to pay the remaining fee. Now that 30 days has passed without any payment and Plaintiff still has not shown good cause for his failure to comply with the Court's orders, dismissal is appropriate. Further, I agree with Magistrate Judge Shaffer's analysis under Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992).
Accordingly, it is ordered:
1. The recommendation of Magistrate Judge Craig B. Shaffer (doc no. 45) is accepted. Plaintiff's Motion for Preliminary Injunction (doc no 27) is denied. Defendants' Motion to Dismiss (29) is granted in part and denied in part. All claims against Defendant Martin Sherrod are dismissed with prejudice. 2. Plaintiff's remaining claims are dismissed without prejudice. 3. Defendants may have their costs.