Trujillo v. No Defendants Named

Filing 64

ORDER. The Recommendation for Dismissal for Failure To Prosecute 60 , filed 4/5/2011, is APPROVED and ADOPTED in part and REJECTED in part. The County Defendants Combine Motion For Summary Judgment 50 , filed 2/14/2011, is DENIED as moot. The Mot ion To Vacate Trial Preparation Conference Scheduled for5/6/2011 and Trial to a Jury Set For 5/23/2011 63 , filed 5/4/2011, is GRANTED IN PART and DENIED IN PART. The Trial Preparation Conference, currently set for 5/6/2011 at 4:00 p.m., is VACATED and CONTINUED. This matter is respectfully REFERRED to the magistrate judge for further consideration in light of this order. By Judge Robert E. Blackburn on 5/5/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 09-cv-02523-REB-MEH
RONALD L. TRUJILLO, an individual,
Plaintiff,
v.
MISS CAMPBELL, (Deputy Sheriff),
MR. CHRISTIAN, (Deputy Sheriff),
MR. CAMPBELL, (Deputy Sheriff), and
SGT. MS. SKINNER (Deputy Sheriff),
Defendants.

ORDER ADOPTING IN PART AND REJECTING IN PART
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) the magistrate judge’s Recommendation for
Dismissal for Failure To Prosecute [#60]1 filed April 5, 2011; and (2) defendants’
Motion To Vacate Trial Preparation Conference Scheduled for May 6, 2011 and
Trial to a Jury Set For May 23, 2011 [#63], filed May 4, 2011. I adopt the
recommendation in part and deny it in part, referring and returning the matter to the
magistrate judge for further consideration.
The recommendation of the magistrate judge is detailed and well-reasoned. I
concur with his ultimate conclusion that this case should be dismissed for failure to
prosecute. Nevertheless, the recommendation of a dismissal without prejudice fails to

1

“[#60]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

consider the possibility that plaintiff’s first cause of action, which involves events alleged
to have occurred on April 27, 2009, even if nominally dismissed without prejudice, may
be barred by the two-year statute of limitations applicable to constitutional claims
brought pursuant to 42 U.S.C. § 1983.2 See Wilson v. Garcia, 471 U.S. 261, 275, 105
S.Ct. 1938, 85 L.Ed.2d 254 (1985); Workman v. Jordan, 32 F.3d 475, 482 (10th Cir.
1994). Under those circumstances, the court must explain why such an extreme result
would be appropriate. See Florence v. Decker, 153 Fed. Appx. 478, 480 (10th Cir. Oct.
28, 2005); Woodmore v. Git-N-Go, 790 F.2d 1497, 1499 (10th Cir. 1986).
Here, although an outright dismissal with prejudice was an option available for
plaintiff’s failure to prosecute, the magistrate judge clearly believed he was
recommending a lesser sanction. Accordingly, I find and conclude that reconsideration
of these matters is warranted.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation for Dismissal for Failure To Prosecute [#60],
filed April 5, 2011, is APPROVED and ADOPTED in part and REJECTED in part as
follows;
a. That the recommendation is APPROVED and ADOPTED to the extent it
recommends that this matter be dismissed for failure to prosecute; and
b. That the recommendation is REJECTED to the extent that it recommends that
any such dismissal be without prejudice;
2. That the County Defendants’ Combine Motion For Summary Judgment
2

Other causes of action either are undated or implicate events alleged to have occurred later in

2009.

2

[#50], filed February 14, 2011, is DENIED as moot;
3. That the Motion To Vacate Trial Preparation Conference Scheduled for
May 6, 2011 and Trial to a Jury Set For May 23, 2011[#63], filed May 4, 2011, is
GRANTED IN PART and DENIED IN PART as follows:
a. That the motion is GRANTED to the extent it seeks to vacate the currently
scheduled Trial Preparation Conference and continue that matter to a later date;
and
b. That in all other respects, the motion is DENIED;
4. That the Trial Preparation Conference, currently set for Friday, May 6, 2011,
at 4:00 p.m., is VACATED and CONTINUED, pending further order of the court; and
5. That this matter is respectfully REFERRED to the magistrate judge for further
consideration in light of this order.
Dated May 5, 2011, at Denver, Colorado.
BY THE COURT:

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