Opinion
Civil Action No. 14-cv-02239-RBJ-MJW
09-28-2015
LA SHUNDRA DIAN WILLIAMS, Plaintiff, v. NURSE BRANDY, Defendant.
REPORT & RECOMMENDATION ON Defendant's Combined Motion to Dismiss and Partial Motion for Summary Judgment
(Docket No. 36)
On August 7, 2015, Defendant Brandy filed a motion to dismiss and motion for partial summary judgment. (Docket No. 36.) Under D.C.COLO.LCivR 7.1(d), Plaintiff's response to that motion was due on August 28, 2015. Under Fed. R. Civ. P. 6(d), that response would have been deemed timely if received by the Court by August 31, 2015. On September 8, 2015, the Court entered a Minute Order stating:
. . . It is now September 8, 2015, and no response has been received by the Court.(Docket No. 41 (boldface emphasis added).)
Notably, the Court reminded Plaintiff of the August 28, 2015, deadline to respond in a Minute Order issued on August 13, 2015. That said, the Court will grant Plaintiff one more chance to respond to Defendant Brandy's motion.
It is hereby ORDERED that Plaintiff shall file a response to Defendant's Combined Motion to Dismiss and Partial Motion for Summary Judgment (Docket No. 36) on or before September 25, 2015. Plaintiff is hereby expressly warned that failure to comply with this Order will lead to Defendant's motion being deemed confessed and granted - and may further lead to the dismissal of this case with prejudice.
It is now September 28, 2015, and the Court has not received any response from Plaintiff. Accordingly, the motion is confessed. The Court RECOMMENDS that this case be dismissed on the grounds that (1) Defendant's Combined Motion to Dismiss and Partial Motion for Summary Judgment (Docket No. 36) has been confessed, (2) Plaintiff has failed to prosecute this case and to comply with Court orders, warranting dismissal under Fed. R. Civ. P. 41(b).
Further, the Court has reviewed Defendant's Combined Motion to Dismiss and Partial Motion for Summary Judgment (Docket No. 36) and finds it to be well-founded. Defendant made a showing sufficient to establish, under Fed. R. Civ. P. 56(c), that Plaintiff did not exhaust her administrative remedies and therefore cannot maintain this case. 42 U.S.C. § 1997e. Plaintiff has made no showing of any genuine issue of material fact, and as a result summary judgment on the one remaining claim in this case is appropriate.
RECOMMENDATION
It is hereby RECOMMENDED that Defendant's Combined Motion to Dismiss and Partial Motion for Summary Judgment (Docket No. 36) be GRANTED and that this case be DISMISSED pursuant to Rule 56(a) and Rule 41(b).
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). Dated: September 28, 2015
Denver, Colorado
s/ Michael J . Watanabe
Michael J. Watanabe
United States Magistrate Judge