Opinion
Civil Action 21-cv-02519-RM-NRN
03-23-2022
KENNETH MICHAEL THOMAS, Plaintiff, v. ANALAURA LENZ, Denver Health Hospital Paramedic; CONNIE PRICE, Denver Health Hospital Chief Medical Officer; and JACOB WOLFORD, Denver Police Department Badge #16029 Defendants.
RECOMMENDATION OF DISMISSAL FOR FAILURE TO PROSECUTE, FAILURE TO APPEAR, AND FAILURE TO COMPLY WITH COURT ORDERS
N. REID NEUREITER, UNITED STATES MAGISTRATE JUDGE.
This case is before the Court pursuant to an Order of Reference to United States Magistrate Judge issued by Judge Raymond P. Moore on October 14, 2021 (Dkt. #14).
In an Order to Show Cause entered on March 9, 2022 (Dkt. #66), the Court set forth the procedural history of this case, including Plaintiff Kenneth Michael Thomas' failure to respond to Defendants' motions to dismiss and his failure to appear at the Motion Hearing set for March 3, 2022, even though he had actual notice of both the motions and hearing. The Court also recounted how a prior lawsuit involving identical parties, Thomas v. Lenz et al, 20-cv-01667-RBJ-NRN (D. Colo.), was dismissed because Mr. Thomas did not respond to pending motions to dismiss, failed to update his address, and did not appear for scheduled hearings. Mr. Thomas was ordered to show cause in writing by March 21, 2022 why this case should not likewise be dismissed, and he was “ expressly warned that a failure to comply will result in dismissal of this case without prejudice. ” (Dkt. #66 at 4) (emphasis in original).
Mr. Thomas did not respond to the Order to Show Cause. Moreover, the Order to Show Cause was returned undelivered on March 21, 2022 (Dkt. #67), which indicates that Mr. Thomas has failed to update his address with the Court, which he is required to do under D.C.COLO.LCivR 5.1(c). At this time, the Court and Defendants have no way to contact Mr. Thomas and the case cannot proceed without his participation.
Rule 41(b) of the Federal Rules of Civil Procedure provides in pertinent part:
If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule-except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19-operates as an adjudication on the merits.Fed. R. Civ. P. 41(b).
Furthermore, Rule 16(f) provides in pertinent part that “[o]n motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: (A) fails to appear at a scheduling or other pretrial conference . . . . or (C) fails to obey a scheduling or other pretrial order.” Fed.R.Civ.P. 16(f). Rule 37(b)(2)(A) (ii)-(vii), which is referenced in Rule 16(f), permits the following sanctions:
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.Fed. R. Civ. P. 37(b)(2)(A) (ii)-(vii) (emphasis added). D.C.COLO.LCivR 41.1 further 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.
Based upon the foregoing, it is hereby
RECOMMENDED that the case be DISMISSED WITHOUT PREJUDICE pursuant to Fed.R.Civ.P. 16(f) and/or 41(b) and D.C.COLO.LCivR 41.1 based on Plaintiff's failure to prosecute, failure appear, and failure to comply with court orders.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr ., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).