Carbajal v. Warner et al

Filing 593

ORDER Overruling Plaintiff's Objections and Denying Motion to Reconsider. The objections stated in Plaintiff's Notice To the Court of the Clerk's Refusal To Mail Court Orders To the Plaintiff and Contemporaneous Objection To the Denia l of Plaintiff's Motion to Compel Schedule Conference, Reset Timelines, Disclosures and Set Trial [# 431 ] filed January 29, 2013, are OVERRULED. Under 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(a), the objections stated in Plaintiff Dean Ca rbajal's Contemporaneous Objection To Magistrate JudgeKristen Mix's Order [January 14, 2014] That Will Improperly Compel the Dismissal of an indigent Plaintiff's Case Due To Mr. Carbajal's Poverty and Inability To Pay Sanctions [# 591 ] filed February 3, 2014, are OVERRULED. By Judge Robert E. Blackburn on 2/13/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 10-cv-02862-REB-KLM
DEAN CARBAJAL,
Plaintiffs,
v.
CAROL WARNER, et al.,
Defendants.

ORDER OVERRULING PLAINTIFF’S OBJECTIONS
AND DENYING MOTION TO RECONSIDER
Blackburn, J.
This matter is before me on the following: (1) Plaintiff’s Notice To the Court of
the Clerk’s Refusal To Mail Court Orders To the Plaintiff and Contemporaneous
Objection To the Denial of Plaintiff’s Motion to Compel Schedule Conference,
Reset Timelines, Disclosures and Set Trial [#431]1 filed January 29, 2013; and (2)
Plaintiff Dean Carbajal’s Contemporaneous Objection To Magistrate Judge
Kristen Mix’s Order [January 14, 2014] That Will Improperly Compel the Dismissal
of an indigent Plaintiff’s Case Due To Mr. Carbajal’s Poverty and Inability To Pay
Sanctions [#591] filed February 3, 2014. The defendants filed a response [#440] to the
first motion and objection [#431].
The plaintiff is acting pro se. Therefore, I construe his filings generously and with

1

“[#431]” 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.

the leniency due pro se litigants, see Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Belmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
Nevertheless, I overrule the objections.
The objections of the plaintiff pertain to non-dispositive matters that were referred
to the magistrate judge for resolution. Under 28 U.S.C. § 636(b) and Fed. R. Civ. P.
72(a), I may modify or set aside any portion of an order of a magistrate judge which I
find to be clearly erroneous or contrary to law.
In an order [#424] entered December 27, 2012, the magistrate judge denied the
motion [#415] filed by the plaintiff, Dean Carbajal, seeking an extension of all deadlines
in this case and requiring the defendants to provide disclosures under FED. R. CIV. P.
26. For the reasons specified in the order of the magistrate judge, the motion was
denied. Nothing in the objection [#431] of Mr. Carbajal demonstrates that this order was
in error, much less clearly erroneous or contrary to law.
On two occasions in recent months, the magistrate judge has entered orders
[#553 & #584] imposing sanctions on Mr. Carbajal based on his failure to comply with
his discovery obligations in this case. In both orders, the magistrate judge ordered Mr.
Carbajal to pay the attorney fees and costs of the defendants tied to the failure of Mr.
Carbajal to comply with his discovery obligations. In addition, in both orders, the
magistrate judge warned Mr. Carbajal that continued refusal to abide by the orders of
the court may lead to dismissal of this case as a sanction. The magistrate judge cited
the five factors relevant to the imposition of dismissal as a sanction, as stated in
Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992) and its progeny.

2

The objection [#591] of Mr. Carbajal is addressed to the order [#584] filed
January 15, 2014. That order [#584] imposes sanctions on Mr. Carbajal based on his
unjustified failure to provide to the defendants a validly executed release concerning the
medical and tax records of Mr. Carbajal. In the order [#584], the magistrate judge found
that Mr. Carbajal failed to provide notarized releases to the defendants and that this
failure violated the orders of the court, as stated in the order [#459] entered March 18,
2013.
In his objection [#591], Mr. Carbajal argues, in essence, that the imposition of
monetary sanctions against an indigent pro se plaintiff is improper. In addition, he
contends it is improper to impose dismissal as a sanction against such a plaintiff when
the plaintiff fails to pay monetary sanctions. In the view of Mr. Carbajal, neither
monetary sanctions nor the sanction of dismissal is proper, despite his repeated
unwarranted failure to comply with his discovery obligations and his anticipated failure to
pay monetary sanctions ordered by the court. Notably, Mr. Carbajal proposes no
alternative sanction which might be less severe than dismissal or an order to pay fees
and costs, but which might motivate Mr. Carbajal to comply with his discovery
obligations and the orders of this court. The court knows of no such sanction.
Nothing in the objection [#591] of Mr. Carbajal demonstrates that the order of the
magistrate judge [#584] was in error, much less clearly erroneous or contrary to law. In
a separate order, I order Mr. Carbajal to show cause why this case should not be
dismissed because of his failure to comply with his discovery obligations in this case.
THEREFORE, IT IS ORDERED as follows:
1. That under 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(a), the objections stated

3

in Plaintiff’s Notice To the Court of the Clerk’s Refusal To Mail Court Orders To
the Plaintiff and Contemporaneous Objection To the Denial of Plaintiff’s Motion to
Compel Schedule Conference, Reset Timelines, Disclosures and Set Trial [#431]
filed January 29, 2013, are OVERRULED; and
2. That under 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(a), the objections stated
in Plaintiff Dean Carbajal’s Contemporaneous Objection To Magistrate Judge
Kristen Mix’s Order [January 14, 2014] That Will Improperly Compel the Dismissal
of an indigent Plaintiff’s Case Due To Mr. Carbajal’s Poverty and Inability To Pay
Sanctions [#591] filed February 3, 2014, are OVERRULED.
Dated February 13, 2014, at Denver, Colorado.
BY THE COURT:

4