Opinion
Civil Action 18-cv-02334-CMA-MEH
01-05-2022
THOMAS STOCKS, Plaintiff, v. CASEY CROWFOOT, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, United States Magistrate Judge.
This matter comes before the Court on Defendant's Renewed Motion for Discovery Sanctions (ECF 115). The Court recommends that this case be dismissed with prejudice for Plaintiff's failure to prosecute and to obey the Court's orders.
BACKGROUND
Plaintiff commenced this lawsuit pro se on September 12, 2018. The underlying dispute involves Plaintiff's allegation that the Defendant, a police officer, engaged in excessive force against him in violation of his civil rights under 42 U.S.C. § 1983. The case has had a tortured history, mostly because of Plaintiff's failure to meet his discovery obligations. At one point the Court appointed volunteer counsel in an attempt to overcome Plaintiff's inability or refusal to meet his obligations. ECF 80. That appointment lasted less than thirty days, ending with volunteer counsel's withdrawal under Colorado Rule of Professional Conduct 1.16(b)(5)-(7):
[T]he client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or other good cause for withdrawal exists.1
The undersigned judicial officer has spent an inordinate amount of time patiently directly Plaintiff to meet his discovery obligations. The record shows no less than six discovery and status conferences precisely to achieve this goal. ECF 98, 84, 73, 65, 63, 61. The record shows no participation by Plaintiff in this case of any sort since August 25, 2021, despite Defendant's filing of six motions (to which Plaintiff filed no responses).
I rely on the litany of discovery abuses alleged by Defendant in ECF 115, which I believe are properly supported by the record. I also rely on Plaintiff's abandonment of this case. Enough is enough. Pro se status does not excuse the obligation to comply with the same court orders and rules of procedure that govern other litigants. Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992); Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). The Federal Rules of Civil Procedure give a district court ample tools to deal with a recalcitrant litigant. Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993). Fed.R.Civ.P. 41(b) allows a defendant to move for dismissal of an action if the plaintiff fails to prosecute or comply with a court order. Id.; Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007). Although the language of Rule 41(b) requires that the defendant file a motion to dismiss, the Rule has long been interpreted to permit courts to dismiss actions even sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or a court's orders. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962).
Under Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992), a court should consider five factors before dismissing claims with prejudice under Rule 41(b):
1. “the degree of actual prejudice to the defendant, ”
2. “the amount of interference with the judicial process, ”
3. “the culpability of the litigant, ”
4. “whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance, ” and2
5. “the efficacy of lesser sanctions.”Auto-Owners Ins. Co. v. Summit Park Townhome Ass'n, 886 F.3d 852, 860 (10th Cir. 2018) (quoting Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994)).
As applied here, Defendant has suffered substantial prejudice, given the age of this case and the clear, unnecessarily excessive involvement defense counsel has expended in this case (indeed, on October 29, 2021, I awarded $24, 710.44 as a sanction against Plaintiff). Plaintiff's contumacious conduct has resulted in substantial interference with the judicial process, particularly given that this is his case. Plaintiff alone bears the responsibility for his actions, particularly given that the Court reached out to appoint him an attorney, resulting shortly thereafter in counsel's withdrawal. Moreover, I have warned Plaintiff numerable times about the consequences of his actions, including warning him that one more violation would result in my recommendation to dismiss (and he indeed violated that warning, as Defendant notes). Finally, no other sanction will work, as not even a significant financial penalty has made a difference. All the Ehrenhaus factors favor dismissal with prejudice.
CONCLUSION
Accordingly, pursuant to Fed.R.Civ.P. 41(b), I respectfully RECOMMEND that the District Court dismiss this case with prejudice for Plaintiff's failure to prosecute. 3
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).