Opinion
Civil Action No. 20-cv-02293-RM-NYW
12-04-2020
CORY SEARS, Plaintiff, v. JEFFERSON COUNTY DETENTION CENTER, and JEFFERSON COUNTY COURTS, Defendants.
RECOMMENDATION OF UNITED STATES JUDGE
This matter comes before this court on the Order to Show Cause dated November 12, 2020. [#24]. The presiding judge, the Honorable Raymond Moore, has referred this matter to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b). [#6]. For the following reasons, this court respectfully RECOMMENDS that this matter be DISMISSED without prejudice pursuant to D.C.COLO.LCivR 41.1 given Plaintiff Cory Sears's ("Plaintiff" or "Mr. Sears") failure to prosecute and that the Motion to Dismiss [#19] be DENIED as moot, subject to re-filing if appropriate.
BACKGROUND
Plaintiff initiated this civil action by filing his pro se prisoner Complaint in this District on August 3, 2020. See According to Plaintiff, Defendants violated his constitutional rights by detaining him in the Jefferson County Detention Center for more than a month without bail while COVID-19 has affected other detainees. See generally [id.]. The Honorable Gordon P. Gallagher granted Plaintiff leave to proceed in forma pauperis and drew this civil action to Judge Moore, who has referred this matter to the undersigned Magistrate Judge. See [#4; #5; #6].
On August 20, 2020, this court set this matter for a Telephonic Status Conference to occur on November 10, 2020. [#13]. The Certificate of Service filed on the court's docket indicates that the Minute Order setting the November 10 Status Conference was sent to Mr. Sears at the Jefferson County Detention Facility in Golden, Colorado. [#14]. There is no indication on the docket that Mr. Sears did not receive this court's Minute Order. Further, this court has issued two additional Minute Orders, see [#18; #21], and there was again no indication that Mr. Sears did not receive those Minute Orders.
Plaintiff failed to appear for the November 10, 2020 Status Conference. Counsel for the Jefferson County Detention Center informed this court that Mr. Sears may have been transferred. See [#23]. However, Plaintiff has not alerted the court to any change in his mailing address. Given Plaintiff's absence from the November 10 Status Conference, this court issued an Order to Show Cause directing Plaintiff to show cause why this court should not recommend dismissal of this action for failure to comply with an order of this court and to prosecute. [#24]. The deadline to respond to the Order to Show Cause expired on December 3, 2020, [id.], but the court's docket reflects that the Order to Show Cause was returned as undeliverable, [#26]. Presently, Mr. Sears has yet to respond to the Order to Show Cause or update his mailing address with the court.
Further, this court's independent search did not reveal an updated mailing address for Mr. Sears.
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).
A party's pro se status does not exempt him 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).
ANALYSIS
As mentioned, Mr. Sears failed to appear for the court-ordered Status Conference on November 10, 2020, [#23], and nothing indicated that Mr. Sears did not receive notice of the Status Conference. Given his absence, this court issued an Order to Show Cause directing Mr. Sears to respond in writing on or before December 3, 2020, and specifically advising Mr. Sears "that his failure to comply with this Order may result in this court recommending dismissal of this action." [#24 at 3 (emphasis in original)]. The Order to Show Cause has since been returned as undeliverable, suggesting Mr. Sears is no longer at the Jefferson County Detention Center. See [#26]. Indeed, defense counsel suggested at the November 10 Status Conference that Mr. Sears may have been transferred, see [#23], but Mr. Sears has not updated his mailing address with the court as required under D.C.COLO.LAttyR 5(c) (requiring attorneys and unrepresented parties to update their mailing addresses within five days of the change) and this court's independent search has yielded no updated mailing address. Without any way to contact Mr. Sears, and given Mr. Sears's failures to comply with orders of this court and this District's Local Rules, dismissal of this matter without prejudice appears warranted under D.C.COLO.LCivR 41.1. See Reed, 312 F.3d at 1195 ("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 before this court is Defendant Jefferson County Detention Center's Motion to Dismiss. [#19]. Given Mr. Sears'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).
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) Jefferson County Detention Center's Motion to Dismiss [#19] 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 of fact, 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 Order, marked as legal mail, shall be sent to:
Cory Sears
P01134926
Jefferson County Detention Facility
P.O. Box 16700
Golden, CO 80402-6700 DATED: December 4, 2020
BY THE COURT:
/s/_________
Nina Y. Wang
United States Magistrate Judge