Opinion
Civil Case No. 11-cv-03173-REB-MEH
12-04-2012
THERESA L. DOWLING, Plaintiff, v. EXCEL ENERGY, Defendant.
Judge Robert E. Blackburn
ORDER ADOPTING RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matter before me is the Recommendation of United States Magistrate Judge [#56] filed October 12, 2012. No objections having been filed to the recommendation, I review it only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005). Finding no such error in the magistrate judge's recommended disposition, I find and conclude that recommendation should be approved and adopted.
"[#56]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's electronic case filing and management system (CM/ECF). I use this convention throughout this order.
This standard pertains even though plaintiff is proceeding pro se in this matter. Morales-Fernandez, 418 F.3d at 1122. In addition, because plaintiff is proceeding pro se, I have construed her pleadings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)).
The magistrate judge recommends that this lawsuit be dismissed with prejudice as a sanction for plaintiff's failure to comply with the duly issued orders of the court and failure to prosecute this action. Although dismissal with prejudice is undoubtedly an extreme sanction, the circumstances chronicled in the magistrate judge's recommendation indisputably demonstrate a "clear record of delay [and] contumacious conduct by the plaintiff" warranting the imposition of such a penalty. Meade v. Grubbs, 841 F.2d 1512, 1520 n.6 (10th Cir. 1988).
The magistrate judge thoroughly considered all of the relevant factors prescribed by Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992). Given both plaintiff's conduct in this case and her lengthy history of past litigation, I concur with the magistrate judge that nothing short of a dismissal with prejudice is sufficient to deter plaintiff from a clear pattern of abuse of the judicial process.
I also echo the magistrate judge's admonition to plaintiff "that her continued practice of filing frivolous lawsuits, ignoring court orders, or failing to prosecute her actions with due diligence may result in court-imposed restrictions on her ability to file future cases in this district." (Recommendation of United States Magistrate Judge at 9 [#56], filed October 12, 2012.)
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THEREFORE, IT IS ORDERED as follows:
1. That Recommendation of United States Magistrate Judge [#56] filed October 12, 2012, is APPROVED AND ADOPTED as an order of this court;
2. That plaintiff's claims against defendant are DISMISSED WITH PREJUDICE as a sanction for failure to comply with the duly issued orders of the court and failure to prosecute;
3. That judgment SHALL ENTER on behalf of defendant Xcel Energy against plaintiff Theresa L. Dowling on all claims for relief and causes of action; provided, that the judgment shall be with prejudice; and
4. That defendant is AWARDED its costs to be taxed by the clerk of the court pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated December 4, 2012, at Denver, Colorado.
BY THE COURT:
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Robert E. Blackburn
United States District Judge