Opinion
Civil Action No. 20-cv-00044-DDD-NYW
04-22-2020
JONATHAN MCLANE, JOHN THOMAS COOPER, JR., and KATIE ETCHEVERRY, Plaintiffs, v. CITY AND COUNTY OF DENVER, MICHAEL B. HANCOCK, AMANDA P. SANDOVAL, KEVIN FLYNN, JAMIE TORRES, KENDRA BLACK, AMANDA SAWYER, PAUL KASHMANN, JOLON CLARK, CHRISTOPHER HERNDON, CANDI CDEBACA, CHRIS HINDS, STACIE GILMORE, ROBIN KNIECH, DEBORAH ORTEGA, KRISTIN M. BRONSON, MICHAEL J. HYMAN, PAUL PAZEN, BARB ARCHER, RON THOMAS, and JOHN AND JANE DOES 1-10, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the Order to Show Cause dated April 15, 2020. See [#22]. The undersigned considers this matter pursuant to 28 U.S.C. § 636(b) and the Order Referring Case dated January 9, 2020. See [#12]. For the following reasons, this court respectfully RECOMMENDS that this civil action be DISMISSED without prejudice for failure to prosecute pursuant to D.C.COLO.LCivR 41.1.
BACKGROUND
This is a pro se civil rights complaint action filed by Plaintiffs Jonathan McLane ("Mr. McLane"), John Thomas Cooper, Jr. ("Mr. Cooper"), and Katie Etcheverry ("Ms. Etcheverry" and collectively, "Plaintiffs") against Defendants the City and County of Denver, Michael B. Hancock, Amanda P. Sandoval, Kevin Flynn, Jamie Torres, Kendra Black, Amanda Sawyer, Paul Kashmann, Jolon Clark, Christopher Herndon, Candi CdeBaca, Chris Hinds, Stacie Gilmore, Robin Kniech, Deborah Ortega, Kristin M. Bronson, Michael J. Hyman, Paul Pazen, Barb Archer, Ron Thomas, and John and Jane Does 1-10 (collectively, "Defendants") regarding Defendants' alleged actions against citizens experiencing homelessness, including Defendants' alleged unconstitutional interference with "Plaintiffs' freedom of speech" and "right to travel, and retaliation against Plaintiffs for exercising their First Amendment rights." See generally [#6].
Plaintiffs initiated this civil action in the United States District Court of the District of Colorado on January 6, 2020, see and this action was subsequently assigned to the Honorable Gordon P. Gallagher, see [#2]. That same day, Plaintiffs applied to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. [#3; #4; #5]. The following day, Plaintiffs filed their First Amended Civil Rights Complaint. [#6, filed January 7, 2020]. On January 8, 2020, Judge Gallagher granted Plaintiffs leave to proceed in forma pauperis [#9], and the action was reassigned to the Honorable Daniel D. Domenico, the presiding judge, and drawn to the undersigned. See [#2; #10].
This court set a Status Conference for March 23, 2020 at 10:30 AM to discuss the progress of the case. [#13]. Because Plaintiffs had not provided any addresses for the Defendants named in the instant action, the United States Marshals were unable to affect service on the Defendants. Accordingly, this court ordered Plaintiffs to provided addresses for the Defendants by Minute Order dated January 22, 2020. [#15]. The following day, and in response to this court's [#15] Minute Order, Plaintiffs filed a "Notice of Service Address." [#18].
The March 23, 2020 Status Conference was subsequently vacated pursuant to the undersigned's Amended Standing Order responding to the public health concerns caused by the novel coronavirus. [#19, filed March 13, 2020]. On April 1, 2020, this court reset this matter for a Telephonic Status Conference for April 15, 2020 at 1:00 PM. [#20]. Plaintiffs received contemporaneous notice of this Minute Order through the CM/ECF system, and the court ordered copies of the Minute Order sent to Plaintiffs by mail to their respective addresses. See [id.]. Plaintiffs did not appear for the April 15, 2020 Telephonic Status Conference, despite this court's order to do so. [#24]. Nor was there any indication from the docket that mail had been returned from any of the three Plaintiffs, or that any of the three Plaintiffs had attempted to contact the court to reschedule the matter. Accordingly, this court ordered Plaintiffs to show cause, by no later than April 20, 2020, why this court should not recommend dismissal of this action for Plaintiffs' failure to comply with orders of the court and their failure to prosecute this civil matter. [#22]. Copies of this court's Order to Show Cause were sent to Plaintiffs by mail. See [#23]. Again, none of the mail to the respective Plaintiffs was returned. Plaintiffs have not responded to this court's Order to Show Cause and the deadline to do so has passed. See [id.].
Defendants did not appear for the Telephonic Status Conference, but this court notes that Defendants have not yet been served in this action. Because it appeared that Defendants had not been served, by Minute Order dated April 15, 2020, this court ordered the United States Marshals to attempt service on Defendants at the address provided by Plaintiffs in the [#18] Notice and sua sponte extended the deadline to serve Defendants to June 15, 2020. See [#21].
LEGAL STANDARD
Local Rule of Civil Practice 41.1 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. "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 dismissing a case without prejudice for failure to prosecute or defend, "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).
ANALYSIS
As explained in the Order to Show Cause, Plaintiffs have demonstrated access to the CM/ECF filing system, as shown by their prompt response to this court's [#15] Minute Order. See [#18]. Moreover, this court sent copies of the [#20] Minute Order by mail to Plaintiffs on April 1, 2020, providing Plaintiffs with two weeks of notice before the Telephonic Status Conference. This case has been pending since January 6, 2020 [#1] and, in its Order to Show Cause, this court warned that "though the Plaintiffs proceed pro se, they are obligated to satisfy the same procedural and substantive requirements as represented parties, including but not limited to appearing for any and all hearings set by the court, unless otherwise excused beforehand." [#22 at 3 (citing See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008) (observing that a party's pro se status does not relieve him of the obligation to comply with procedural rules); Dodson v. Bd. of Cty. Comm'rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012))]. Indeed, "without such compliance," this court warned, it "cannot effectively or efficiently address Plaintiffs' various claims set forth in this action." [Id.].
In its Order to Show Cause, this court ordered Plaintiffs to show cause why this court should not recommend dismissal of this action for Plaintiffs' failure to comply with this court's Order and for its failure to prosecute this civil matter. See [id. at 4]. But, to date, Plaintiffs have yet to respond to the Order to Show Cause. Accordingly, this court concludes that Plaintiffs' failure to comply with multiple Orders of this court warrants dismissal of this civil matter without prejudice for failure to prosecute under D.C.COLO.LCivR 41.1.
CONCLUSION
Accordingly, this court respectfully RECOMMENDS that:
(1) This civil action and Plaintiffs' Complaint be DISMISSED without prejudice for failure to comply with an order of this court and for failure to prosecute pursuant to D.C.COLO.LCivR 41.1.DATED: April 22, 2020
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, 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); Griego v. Padilla (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. 2121 East 30th Street, 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 of fact, legal conclusions, 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 of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of "firm waiver rule"); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
BY THE COURT:
/s/_________
Nina Y. Wang
United States Magistrate Judge