Opinion
Civil Action 20-cv-03534-RMR-NYW
09-07-2021
DARIAN LAVAR SCOTT, Plaintiff, v. LENGERICH, Warden, Buena Vista Correctional Facility, in his individual and official capacities, Defendant.
RECOMMENDATION OF UNITED STATES JUDGE
NINA Y. WANG, UNITED STATES MAGISTRATE JUDGE
This matter comes before this court on Defendant Lengerich's (“Defendant” or “Warden Lengerich”) Motion to Dismiss Second Amended Complaint (“Motion to Dismiss”) dated June 21, 2021 [Doc. 45]. This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated April 30, 2021 [Doc. 30], and the Memorandum dated June 25, 2021 [Doc. 47]. 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 Darian Lavar Scott's (“Plaintiff” or “Mr. Scott”) failure to prosecute and that the Motion to Dismiss [Doc. 45] be DENIED as moot, subject to re-filing if appropriate.
BACKGROUND
Proceeding pro se, Mr. Scott initiated this action on November 30, 2020, by filing a Prisoner Complaint asserting a deprivation of his constitutional rights pursuant to 42 U.S.C. § 1983. See generally [Doc. 1]. The Honorable Gordon P. Gallagher subsequently granted Mr. Scott leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. [Doc. 4]. Judge Gallagher also twice directed Mr. Scott to cure deficiencies in his pleading. [Doc. 4, Doc. 15].
On February 22, 2021, Mr. Scott filed his operative Second Amended Complaint [Doc. 15], asserting § 1983 claims against the Executive Director of the CDOC and Warden Lengerich premised on Warden Lengerich's failure to adhere to a “separation policy” at the Buena Vista Correctional Facility (“BVCF”), whereby Mr. Scott would be housed separately from an inmate who shot Mr. Scott and killed his brother in 2013. See generally [id.]. Mr. Scott claims that Warden Lengerich has violated the Eighth Amendment by acting with deliberate indifference to a serious risk of harm to Mr. Scott's safety. [Id.]. He further claims that Warden Lengerich retaliated against him for filing a grievance and the instant lawsuit. [Id.]. He requests injunctive relief in the form of a transfer and damages. [Id.]. At that time, Mr. Scott was located at BVCF.
The Second Amended Complaint also asserted claims against Dean Williams, Executive Director of the CDOC (“Director Williams”). Pursuant to the March 3, 2021 Recommendation of the Honorable Gordon P. Gallagher [Doc. 18], and the March 31, 2021 Order adopting the same by the Honorable Lewis T. Babcock [Doc. 19], Plaintiff's official capacity claims for monetary relief were dismissed as barred by the Eleventh Amendment and Plaintiff's § 1983 claims asserted against Director Williams were dismissed without prejudice for failure to allege his personal participation. Thus, only the § 1983 claims against Warden Lengerich in his individual and official capacities remain.
On March 31, 2021, the Honorable Lewis T. Babcock issued an Order Drawing Case and this case was assigned to the undersigned. See [Doc. 19]. Upon the Parties' non-consent to the jurisdiction of a Magistrate Judge [Doc. 28], this case was reassigned to the Honorable Raymond P. Moore, who subsequently referred this action to the undersigned [Doc. 29, Doc. 30]. This case was later reassigned to the Honorable Regina M. Rodriguez upon her appointment. [Doc. 49].
At a Status Conference held on May 3, 2021, Mr. Scott indicated that he had been moved to the Sterling Correctional Facility (“SCF”). [Doc. 32 at 1-2]. To ensure that court mail could reach him, this court ordered Plaintiff to file a notice of his updated address within five days of the Status Conference. [Id. at 2]. This court also advised Plaintiff of his obligation to comply with the Federal Rules of Civil Procedure, the Local Rules of Practice for the United States District of Colorado, and this court's Practice Standards. [Id.]. In an abundance of caution, the United States Clerk of the Court mailed the Courtroom Minutes/Minute Order from the May 3 Status Conference to Plaintiff at both the BVCF (the address reflected on the court docket) and SCF. [Doc. 33].
On June 21, 2021, Defendant filed a Motion to Dismiss Second Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (or “Motion to Dismiss”), invoking qualified immunity and seeking dismissal of Plaintiff's Second Amended Complaint in its entirety pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [Doc. 45]. In conjunction with the Motion to Dismiss, Counsel for Defendant informed this court that Mr. Scott may have been transferred to a different facility. See [Doc. 45; 45-1]. The following day, Defendant filed a Motion to Stay, seeking a stay of discovery and proceedings pending resolution of his Motion to Dismiss. [Doc. 46]. Both the Motion to Dismiss and the Motion to Stay were served upon Mr. Scott at the Centennial Correctional Facility (“CCF”). [Doc. 45 at 19; Doc. 46 at 6]. By Minute Order dated June 25, 2021, this court ordered Mr. Scott to respond to the Motion to Dismiss and Motion to Stay by no later than July 13 and 14, 2021, respectively. [Doc. 48]. Mr. Scott neither filed responses to the pending Motions, nor alerted the court to any change in his mailing address.
It appears that this Order was sent to Mr. Scott at the BVCF address reflected on the docket [Doc. 48], underscoring the difficulty of communicating with Plaintiff without an updated address on the docket.
Given Plaintiff's failure to respond to the Motion to Dismiss [Doc. 45] and Motion to Stay [Doc. 46], this court issued an Order to Show Cause directing Plaintiff to show cause why this court should not recommend dismissal of this this action for failure to prosecute and comply with D.C.COLO.LAttyR 5(c) - which requires pro se parties to maintain current contact information with the court. [Doc. 50]. The court expressly served the Order on Mr. Scott at CCF, where Defendant served the Motion to Dismiss and the Motion to Stay and the Inmate Locator for the Colorado Department of Corrections indicates that Plaintiff is currently housed. The court expressly indicated that a filing of a notice of change of mailing address would constitute an adequate response to the Order to Show Cause. [Doc. 50 at 10]. The deadline to respond to the Order to Show Cause expired on August 9, 2021. [Id.]. Presently, Mr. Scott has yet to respond to the Order to Show Cause or update his mailing address with the court.
Based on the docket and given that no mail sent to Mr. Scott at BVCF has been returned undeliverable, it is unclear whether Mr. Scott has continued to receive correspondence sent to him at BVCF after his departure from that facility. See, e.g., [Doc. 23, Doc. 24, Doc. 32]. However, the Motion to Dismiss and Motion to Stay were both sent to Mr. Scott at CCF, and the court's Order to Show Cause refers to both pending Motions. [Doc. 50 at 3].
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. Scott failed to respond to the Motion to Dismiss [Doc. 45] and Motion to Stay [Doc. 46], and as discussed above, Defendant's substantive Motions were sent to Mr. Scott at CCF. Furthermore, nothing indicates that Mr. Scott did not receive the Court's various orders directing Mr. Scott file his responses or update his mailing address - including an oral advisement during the May 3 Status Conference. [Doc. 32, Doc. 50]. Given Mr. Scott's lack of responses and participation in this action, this court issued an Order to Show Cause directing Mr. Scott to respond in writing on or before August 9, 2021, and specifically advising Mr. Scott that his “filing of a notice of change of mailing address on or before August 9, 2021 will constitute an adequate response to this Order to Show Cause.” [Doc. 50 at 10].
The Order to Show Cause has not been returned as undeliverable, suggesting Mr. Scott received the order at the CCF mailing address where the order was delivered. See [id. at 11]. Indeed, Defendants' Exhibit A to the Motion to Dismiss suggests that Mr. Scott has been incarcerated at CCF since June 4, 2021 [Doc. 45-1 at 1], but Mr. Scott 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 reliable way to contact Mr. Scott, and given Mr. Scott'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.”).
According to Defendant's Exhibit A to the Motion to Dismiss (a “Movements” report for Darian L. Scott, inmate #162169)-Mr. Scott was last incarcerated at BVCF in February 2021. [Doc. 451 at 3]. Exhibit A indicates that Mr. Scott was transported to Centennial Correctional Facility (“CCF”) on February 23, 2021 [id. at 2]; Sterling Correctional Facility (“SCF”) in March 2021 [id.];4 Denver General Hospital and Denver Reception and Diagnostic Center (“DRDC”) in May 2021 [id. at 1-2]; and ultimately transported back to CCF on June 4, 2021 [id. at 1].
Also before this court is Defendant Lengerich's Motion to Dismiss. [Doc. 45]. Given Mr. Scott'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 Motion 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) Defendant Lengerich's Motion to Dismiss [Doc. 45] 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 the following:
Darian Lavar Scott #162169
Centennial Correctional Facility 600 Evans Road
Canon City, Colorado 80215
Case Manager for Darian Lavar Scott #162169
Centennial Correctional Facility 600 Evans Road
Canon City, Colorado 80215