Rueb v. Zavaras et al

Filing 173

ORDER Dismissing with Prejudice. Pursuant to Fed. R. Civ. P. 41(b),the Court ORDERS this matter is hereby DISMISSED WITH PREJUDICE, by Judge R. Brooke Jackson on 9/28/11. (lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-02817-RBJ-MEH
JUSTIN JOSEPH RUEB,
Plaintiff,
v.
ARISTEDES ZAVARAS,
SUSAN JONES,
DENNIS BURBANK,
ANTHONY DECESARO,
LARRY REID, and
WILLIAM RICHTER,
Defendants.
_________________________________________________________________________________
ORDER DISMISSING WITH PREJUDICE
_________________________________________________________________________________
I.

BACKGROUND
Plaintiff initiated this action pro se on December 2, 2009 with a complaint stating four

claims against two defendants. (Docket #3.) The Court conducted an initial review of the
complaint pursuant to D.C. Colo. LCivR 8.2C and determined it was not appropriate for summary
dismissal. The case was then drawn to Judge Robert E. Blackburn and to Magistrate Judge
Hegarty for adjudication. On September 26, 2011 the case was reassigned to Judge R. Brooke
Jackson.
On February 16, 2010 plaintiff filed a motion for leave to amend his initial complaint.
Pursuant to Fed. R. Civ. P. 15(a)(1)(B) (2010), the Magistrate Judge accepted plaintiff’s
Amended Complaint as filed pursuant to plaintiff’s right to amend once as a matter of course.
(Docket #23.) The Amended Complaint greatly expanded this action to 22 defendants and 46
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claims, including subparts. (Docket #24.) The defendants responded to plaintiff’s Amended
Complaint with a motion to dismiss on April 21, 2010. (Docket #51.) After significant delay due
to wrangling over page limitations and extensions of time in which to respond, plaintiff responded
to the motion to dismiss on August 10, 2010, which was accepted by the Court as a proper
response on November 2, 2010. (See dockets ##109, 110.)
In adjudicating the motion to dismiss, this Court dismissed all but part of one of
plaintiff’s claims and gave permission for plaintiff to file a Second Amended Complaint, limited
to Claim 5(b) only, no later than April 25, 2011. (Docket #125 at 19-20.) On March 21, 2011
plaintiff asked the Court to stay the effect of the March 7, 2011 order and to allow plaintiff
through May 2, 2011 to file a Second Amended Complaint, which would “completely” amend
the Amended Complaint dismissed in large part. (Docket #126.) The Magistrate Judge denied
plaintiff’s request and explained to plaintiff that the proper mechanism for challenging the March
7, 2011 order would be an appropriate motion under Fed. R. Civ. P. 59 or 60. (Docket #129.)
On April 19, 2011 plaintiff filed a motion for an extension of time to file a Second
Amended Complaint and a motion for reconsideration. (Docket #131.) The Court denied this
motion without prejudice for plaintiff’s failure to comply with D.C. Colo. LCivR 5.1G, governing
the inclusion of a certificate of service. (Docket #133.) Plaintiff filed an additional motion
supplementing the first motion for extension of time. (Docket #134.) Plaintiff asked for an
extension of time through May 30, 2011 to file a motion to alter and amend judgment. Plaintiff
again referred to the “2nd Amended Complaint,” consisting of “several hundred pages.” The
Court denied this request as moot, as Fed. R. Civ. P. 60(c) provides for an extended time frame in
which to file a motion pursuant to Fed. R. Civ. P. 60(b). (Docket #136.) However, in
consideration of plaintiff’s pro se status, the Court sua sponte granted an extension of time in
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which plaintiff could file a Second Amended Complaint, limited to Claim 5(b) only (as stated in
the March 7, 2011 order), up to and including May 25, 2011. (Id.; see also docket #125 at 20.)
Plaintiff failed to meet the extended May 25, 2011 deadline. The Magistrate Judge thus
issued an Order to Show Cause based on Plaintiff’s failure to prosecute this action on May 31,
2011. (Docket #137.) Plaintiff then filed a third motion for extension of time on June 1, 2011.
(Docket #139.) Plaintiff again referred to a proposed Second Amended Complaint necessitating a
“5-page ‘INDEX,’” which plaintiff included as an attachment to his motion. Review of the
proposed Index demonstrated to the Court that the Second Amended Complaint plaintiff sought to
file exceeds the scope of the permission granted in the original March 7, 2011 order. (Id. at 5-9
(proposed index)). The Court, again considering plaintiff’s pro se status, granted Plaintiff’s
request only to the extent that Plaintiff could file the defined Second Amended Complaint, limited
to Claim 5(b) only and subject to court approval, on or before June 13, 2011. (Docket #141.) In
light of the motion for extension of time, the obligation in the Order to Show Cause issued May
31, 2011 was discharged.
Plaintiff then filed a “Motion and Declaration for the Issuance of a Temporary Restraining
Order and Preliminary Injunction” on June 10, 2011 (docket #142), a “Motion for Order Ordering
the Defendants to Preserve Evidence and to Produce Evidence during the Upcoming ‘Motion for
Temporary Restraining Order’ Hearing” and a “Motion for Indefinite Extension of Time to File:
‘Motion to Alter and Amend Judgement’; ‘Motion to Amend Complaint’‘ and the Proposed ‘2nd
Amended Complaint’” on June 13, 2011 (dockets ##145, 146), and a “Motion for Order Ordering
the Defendants to Preserve Evidence, and to Produce Evidence for T.R.O. Hearing” on June 14,
2011 (docket #149). The Magistrate Judge disposed of these motions on June 16, 2011, in a
combined recommendation and order. The Magistrate Judge gave plaintiff one last extension of
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time in which to file a Second Amended Complaint compliant with the limitation set forth in the
Court’s March 7, 2011 order, on or before July 7, 2011, exactly four months from the issuance of
the order. The Magistrate Judge warned plaintiff that any proposed Second Amended Complaint
not limited to Claim 5(b) would be stricken.
Plaintiff did not meet the July 7, 2011 deadline. On August 1, 2011 plaintiff filed two
motions: one requesting the voluntary dismissal of Claim 5(b) and one seeking leave to file the a
Second Amended Complaint. Plaintiff included the proposed Second Amended Complaint with
his motion. The proposed Second Amended Complaint greatly exceeds the scope of the
permission granted to plaintiff by this Court in the March 7, 2011 order, as it names 55
defendants and brings 36 claims with multiple subparts, many of which are simple restatements of
claims already adjudicated by this Court in this proceeding. (Docket #163-1 at 1-6). The
proposed Second Amended Complaint also seeks to join six other inmates as plaintiffs. (See
dockets ##163-1 at 1; 163-9 at 5).
The next day, on August 2, 2011, this Court issued an Order to Show Cause, requiring
plaintiff to show cause on or before September 1, 2011, as to why this lawsuit should not be
dismissed for failure to prosecute or as a sanction pursuant to Fed. R. Civ. P. 41(b) or otherwise
for failure to comply with the duly issued orders of the court. The Court recounted that it granted
plaintiff leave to file a second amended complaint limited only to Claim 5(b) by no later than
April 25, 2011. To date, and despite numerous extensions granted by the Magistrate Judge,
plaintiff failed to comply with the lawful and duly issued orders of the court to submit a
compliant amended complaint within a reasonable time. For the reasons stated below and the
entire record herein, the Court concludes that dismissal with prejudice is warranted here, for
plaintiff’s continuing willful failure to comply with court orders and essentially abusive litigation
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conduct.
II.

DISCUSSION
Although plaintiff proceeds without an attorney, he bears the responsibility of prosecuting

this case with due diligence. The Court must liberally construe pro se filings; however, pro se
status does not excuse the obligation of any litigant to comply with the same rules of procedure
that govern other litigants. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992); see also
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). Plaintiff has disregarded this Court and the
Magistrate Judge’s explicit orders regarding the timely filing of a limited Second Amended
Complaint, thereby unduly delaying the resolution of this matter and unduly prejudicing
defendants by making the complaint a moving target.
The Federal Rules of Civil Procedure give a district court ample tools to deal with a
recalcitrant litigant. See Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993). Federal Rule of
Civil Procedure 41(b) allows a defendant to move for dismissal of an action if the plaintiff fails to
prosecute or to comply with a court order. See id.; See also 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 sua sponte for a plaintiff’s failure to prosecute or comply with the rules of civil
procedure or the court’s orders. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). See also
Hawkinson v. Montoya, 283 F. App’x 659, at *2 n.2 (10th Cir. 2008) (unpublished) (citing Rogers
v. Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th Cir. 2007)).
Typically, noncompliance with procedural orders results in dismissal without prejudice.
See Gillon v. Fed. Bureau of Prisons, No. 10-1425, 2011 WL 2023411 (10th Cir. 2011)

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(unpublished) (affirming the district court’s dismissal without prejudice of the plaintiff’s case for
his lack of prosecution, because the plaintiff failed to comply with the district court’s instruction
regarding the filing of an amended complaint); Todd v. Patterson, 397 F. App'x 473 (10th Cir.
2010) (unpublished) (affirming dismissal with prejudice for failure to state a claim and for failure
to comply with a court order to amend a deficient complaint); Griffin v. Dunn, 355 F. App'x 238
(10th Cir. 2009) (affirming dismissal without prejudice of case where pro se plaintiff failed to
comply with an order instructing him to file an amended complaint); Durham v. Lappin, 346 F.
App'x 330 (10th Cir. 2009) (affirming dismissal without prejudice of a pro se prisoner plaintiff's
lawsuit because the prisoner failed to comply with court order to file an amended complaint on
the court-approved complaint form); Wallin v. Dycus, 224 F. App'x 734 (10th Cir. 2007)
(affirming dismissal without prejudice based on pro se prisoner plaintiff’s failure to timely file an
amended complaint).
However, dismissal with prejudice may be appropriate in certain circumstances.
“Dismissal represents an extreme sanction appropriate only in cases of willful misconduct.”
Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992) (citations omitted). “Because
dismissal with prejudice ‘defeats altogether a litigant’s right to access to the courts,’ it should be
used as ‘a weapon of last, rather than first, resort.’” Ehrenhaus, 965 F.2d at 920. Dismissal with
prejudice should occur only where there has been a “clear record of delay or contumacious
conduct by the plaintiff.” Meade v. Grubbs, 841 F.2d 1512, 1520 n.6 (10th Cir. 1988) (citation
omitted).
In Ehrenhaus, the Tenth Circuit affirmed the dismissal of the plaintiff’s claims with
prejudice. The Ehrenhaus plaintiff wilfully failed to comply with two court orders. 965 F.2d at
922. In Cosby v. Meadors, 351 F.3d 1324, 1331-32 (10th Cir. 2003), the Tenth Circuit affirmed
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the dismissal of the plaintiff’s claims with prejudice, even though the plaintiff was an inmate
proceeding pro se, because he did not comply with the court orders outlining his filing fee
payment obligations.
Here, not only did plaintiff not comply with court orders, plaintiff also impeded
Defendants’ ability to proceed in this litigation by not timely filing an operative complaint and by
attempting to use the leniency of the court in granting him extensions of time for compliance to
file a redundant and excessive proposed second amended complaint. Comparing this plaintiff’s
conduct to that of the Ehrenhaus and Cosby plaintiffs, the Court concludes that dismissal with
prejudice is an appropriate sanction.
When evaluating grounds for dismissal of an action, the Court looks to the following
Ehrenhaus factors:
(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, and (5) the efficacy of lesser sanctions.
Ehrenhaus v. Reynolds, 965 F.2d at 921 (10th Cir. 1992) (citations omitted).
Regarding the first factor, plaintiff’s failure to timely file a governing pleading
conforming to the ordered limitation adversely affects defendants’ proceeding in this matter by
keeping the lawsuit in limbo. The absence of a governing pleading impedes the Court’s ability to
review both parties’ pleadings for consideration in reaching a fair and just conclusion of
plaintiff’s claims. Moreover, a constant allusion to an excessive second amended complaint, after
greatly expanding the scope of the litigation with the filing of the amended complaint, makes the
potential claims at issue moving targets. The jockeying by plaintiff for more time, coupled with
failure to comply with ordered deadlines, is not consistent with the true adjudication of an adverse
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and non-frivolous dispute.
In satisfaction of the second factor, plaintiff’s continued non-compliance with the judicial
process by failing to comply with the Court’s orders throughout the entire litigation flouts the
Court’s authority, similar to the Tenth Circuit’s determination in Ehrenhaus. Additionally,
plaintiff’s persistent failure to comply with the Court’s orders compels the Court’s continuous
monitoring of this matter and unnecessary issuance of orders, in turn disproportionately
increasing the workload of the Court and therefore interfering with the administration of justice.

In evaluating the third factor, the Court expressly ordered plaintiff to comply with the
March 7, 2011 order’s limitation on filing a second amended complaint and provided plaintiff
multiple opportunities to do so. The record of plaintiff’s failure to comply with the Court’s orders
leads the Court to believe plaintiff is willfully culpable under these circumstances. Furthermore,
the warnings in the Court’s July 14, 2010, September 7, 2010, May 31, 2011, and August 2,
2011Orders to Show Cause gave plaintiff ample notice that this suit could be dismissed as a result
of his failure to prosecute this action by properly complying with Court orders of any kind, in
satisfaction of the fourth factor.
In considering the fifth factor regarding efficacy of lesser sanctions, the Court concludes
that dismissal with prejudice is warranted here. As stated, dismissal with prejudice “represents an
extreme sanction appropriate only in cases of willful misconduct,” and should be used “as a
weapon of last, rather than first, resort,” particularly in pro se cases. Ehrenhaus, 965 F.2d at 920.;
See also Butler v. Butierres, 227 F. App’x 719, 720 (10th Cir. 2007) (remanding dismissal with
prejudice for determination of willfulness); Cosby v. Meadors, 351 F.3d 1324, 1334 (10th Cir.
2003) (“We caution, however, that our review of Plaintiff’s egregious misconduct should not be
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interpreted as suggesting that equally egregious misconduct is necessary to justify dismissal with
prejudice.”). Considering plaintiff’s inability to respect the Court’s authority by complying with
explicit instructions, the efficacy of lesser sanctions, that is, dismissal without prejudice, will not
curb this plaintiff’s conduct and would unduly prejudice defendants. Should this have been the
first, or even second, instance of noncompliance by plaintiff, dismissal without prejudice would be
more appropriate. However, through his conduct in this litigation, plaintiff has demonstrated
willful disregard for court orders and procedure. For these reasons, dismissal with prejudice of
this action is warranted.
III.

CONCLUSION
Based on the foregoing and the entire record herein, and pursuant to Fed. R. Civ. P. 41(b),

the Court ORDERS this matter is hereby DISMISSED WITH PREJUDICE.
It is SO ordered.

DATED September 28, 2011.
BY THE COURT:

_______________________
R. Brooke Jackson
United States District Judge

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