Marshall v. Milyard et al

Filing 87

ORDER. Plaintiff's 86 Motion: Excussiable Neglect is denied. By Judge Philip A. Brimmer on 7/5/11.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 09-cv-02687-PAB-BNB
ERIC MARSHALL,
Plaintiff,
v.
KEVIN MILYARD, Warden,
MICHAEL NEGLEY, Captain,
TWEETEN, Lieutenant,
JOHN DOE, MORKERT, Lieutenant,
BELCHER, Sergeant, and
LLOYD WAIDE, Major,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on plaintiff’s motion for order [Docket No. 86].
Plaintiff’s motion is titled “Motion: Excussiable Neglect,” but appears to seek an
opportunity to object to the Recommendation of United States Magistrate Judge Boyd
N. Boland (“Recommendation”) [Docket No. 70], which the Court accepted on January
24, 2011 [Docket No. 75]. The Recommendation stated that plaintiff had failed to
update his address with the Court after his release from prison and recommended
dismissal of his case for failure to prosecute. The Recommendation also advised
plaintiff of the time period for objecting and the consequences for failure to object. See
Docket No. 70 at 2-3. After plaintiff did not object, the Court accepted the
Recommendation and dismissed his case. See Docket No. 75.

Plaintiff now states that he was suffering mental illness and was homeless and
therefore did not update the Court on his address. He also states that he did not have
an opportunity to object to the Recommendation because he did not receive it and that
his email address did not “have any motions” from the Court. See Docket No. 86 at 3.
However, the Court directed the Clerk to send the Recommendation to plaintiff’s email
address and the Clerk certified that the Recommendation was emailed to him. See
Docket No. 72. Plaintiff had notice of the Recommendation and nonetheless failed to
object to it, thereby waiving de novo review by the Court. See Thomas v. Arn, 474 U.S.
140, 147-48 (1985).
Moreover, dismissal of plaintiff’s case was appropriate. Plaintiff was released on
parole in October 2010. Despite this change in address, he did not update his address
with the Court pursuant to D.C.COLO.LCivR 10.1M. Therefore, the magistrate judge
issued an order directing him to show cause on or before November 16, 2010 why his
complaint should not be dismissed. See Docket No. 65. Plaintiff did not respond to the
order to show cause and, on December 1, 2010, the magistrate judge recommended
dismissal. See Docket No. 70. Although plaintiff did not cause much prejudice to
defendants by his absence from this litigation from October 2010 to February 2011,
other factors weighed in favor of dismissal. See Ehrenhaus v. Reynolds, 965 F.2d 916,
921 (10th Cir. 1992) (stating factors for district courts to consider when dismissing case
as sanction); In re Hopkins, 1998 WL 704710 (10th Cir. Oct. 5, 1998) (applying
Ehrenhaus factors to dismissal for failure to prosecute). Plaintiff failed to provide the
Court with an updated address in response to its order to show cause or respond to the

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order whatsoever, a failure demonstrating a lack of respect for the Court and
interference with the judicial process. See Oliver v. Wiley, Civil Action No. 09-cv00441-PAB, 2010 WL 3307611, at *2 (D. Colo. Aug. 18, 2010). Although plaintiff’s
homelessness during this period may have made it more difficult to apprise the Court of
his address, thereby making him less culpable, plaintiff also did not advise the Court of
this issue or apply to receive filings by electronic mail. Moreover, although he claims he
is seeing a mental health professional now, he does not identify any mental illness
which interfered with his ability to update his address. Plaintiff’s pro se status does not
excuse his obligation to comply with the same rules of procedure that govern other
litigants. See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). Plaintiff was also
warned in advance that dismissal would be a likely sanction for his failure to update his
address and respond to the Court’s orders and yet he ignored the order to show cause
and the recommendation. Finally, as plaintiff was proceeding in forma pauperis in this
case, a lesser, monetary sanction would not be effective. Therefore, the Court will deny
plaintiff’s motion.
For the foregoing reasons, it is
ORDERED that plaintiff’s Motion: Excussiable Neglect [Docket No. 86] is
DENIED.

DATED July 5, 2011.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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