Opinion
Civil Action No. 19-cv-00373-CMA-NYW
03-31-2020
STEVEN KYLE HAMPER, Plaintiff, v. RANDOLPH ROMERO, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the court on the Order to Show Cause dated December 4, 2019. [#74]. The Order to Show Cause directed Plaintiff Kyle Hamper ("Plaintiff" or "Mr. McAllister-Ziegler") to show cause in writing why this court should not recommend dismissal of this action pursuant to D.C.COLO.LCivR 41.1 given Plaintiff's failure to appear for the court-ordered Status Conference set for December 4, 2019. See [id.]. Because Mr. Hamper has not responded to the Order to Show Cause and the deadline for doing so has since lapsed, 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 court discussed the background of this matter in its prior Recommendation, see [#71], and therefore limits its discussion here to only those most salient facts. Plaintiff initiated this civil action by filing his pro se prisoner Complaint on February 11, 2019. See [#1]. The Honorable Gordon P. Gallagher granted Mr. Hamper leave to proceed in forma pauperis and directed Mr. Hamper to file an Amended Complaint. See [#4; #8]. Pursuant to his Amended Complaint, Mr. Hamper asserts two Eighth Amendment claims: (1) excessive force against Defendant Romero and Doe Deputy Sheriffs 1-9 ("Claim 1") and (2) deliberate indifference against Doe Nurses 1-3 and Doe Doctor 1 ("Claim 2"). See [#7]. In addition, Mr. Hamper sought to impose liability on the City and County of Denver ("Denver") for Claims 1 and 2 under Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). See generally [#7]. On December 3, 2019, the undersigned issued a Recommendation that Denver's Motion to Dismiss be granted and Plaintiff's Monell claims be dismissed without prejudice; the Recommendation further recommended that Plaintiff's deliberate indifference claim be dismissed in its entirety, leaving only Claim 1 against Defendant Romero. See [#71]. Judge Arguello adopted the Recommendation in its entirety on January 6, 2020. [#75].
On October 2, 2019, this court set a further Status Conference in this matter for December 4, 2019. See [#57]. Plaintiff failed to appear for the December 4, 2019 Status Conference, and nothing suggested to the court that Mr. Hamper did not have adequate notice of the Status Conference. See [#73]. Accordingly, given Plaintiff's failure to appear at the Status Conference, this court issued an Order to Show Cause for lack of prosecution and directed Mr. Hamper to respond no later than December 30, 2019. [#74]. The Order to Show Cause also warned Mr. Hamper that "his failure to comply with this Order may result in this court recommending dismissal of this action." [Id. at 3 (emphasis in original)]. To date, Mr. Hamper has not responded to the Order to Show Cause and the time to do so has since expired. Given Mr. Hamper's failure to respond, this Recommendation to dismiss appears appropriate.
On March 30, 2020, Defendant Romero filed a Notice of Plaintiff's Failure to Respond to Order to Show Cause. [#76].
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, Mr. Hamper has failed to respond to this court's Order to Show Cause and has failed to explain his absence from the December 4, 2019 Status Conference. As mentioned, nothing on the court's docket reflects that Mr. Hamper was not receiving court filings or notice of the December 4, 2019 Status Conference. And given that Mr. Hamper has not responded to the Order to Show Cause in the time allotted for the nearly three months since, I find the circumstances warrant dismissal of this civil action for lack of prosecution pursuant to D.C.COLO.LCivR 41.1 appropriate.
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, comply with Orders of the court, and this District's Local Rules of Civil Practice.
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:
Stephen Kyle Hamper #178283
Buena Vista Correctional Facility (BVCF)
B4-305
P.O. Box 2017DATED: March 31, 2020
Buena Vista, CO 81211
BY THE COURT:
/s/_________
Nina Y. Wang
United States Magistrate Judge