Lozano v. Fleck et al

Filing 31

ORDER. The Court therefore adopts the recommendation of the magistrate judge 30 and DISMISSES WITH PREJUDICE this case pursuant to D.C.Colo.LCivR 41.1. The Court denies as moot 20 Defendants' Motion to Dismiss. By Judge David M. Ebel on 5/22/2012.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00871-DME-KMT
ANDRE JESUS LOZANO,
Plaintiff,
v.
TERESA FLECK and
TINA BEEKMAN,
Defendants.

ORDER OF DISMISSAL

This matter comes before the Court upon the recommendation (Doc. 30) of United
States Magistrate Judge Kathleen M. Tafoya that Plantiff’s complaint be dismissed in this
case. That recommendation followed Plaintiff’s failure to appear at a scheduling
conference (Doc. 27), his indication that he wished to dismiss the case (id.), and his later
failure to respond to an order to show cause (Doc. 29) as to why the case should not be
dismissed for failure to prosecute and failure to comply with court orders. Plaintiff has
not communicated with the Court since before the magistrate judge’s recommendation.
For the reasons discussed below, the Court adopts the sua sponte recommendation of the

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magistrate judge and DISMISSES WITH PREJUDICE Plaintiff’s complaint.
Accordingly, the Court also denies as moot Defendants’ motion to dismiss (Doc. 20).
BACKGROUND
While Plaintiff was incarcerated in the Colorado Territorial Correctional Facility
in Cañon City, Colorado, following conviction for credit card fraud and parole violations,
he received a prison disciplinary conviction for sexual abuse based on a letter he wrote to
an inmate at another prison facility. Plaintiff alleges that after he was released from
prison, in October 2010, Defendants—employees of the Colorado Department of
Parole—wrongly subjected him to initial sex-offender restrictions and forced him to
undergo a demeaning sex-offender evaluation, though that evaluation did not result in
Plaintiff being labeled a sex offender or being required to undergo sex offender treatment
as a condition of parole.
Plaintiff filed his pro se amended complaint (Doc. 7) 1 on June 21, 2011, seeking
injunctive relief, fees, and $10,000 in damages from both Defendants on theories of
defamation, slander, and libel. The Court does not have diversity jurisdiction over this
suit. However, liberally construing the pro se complaint, see Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991), to allege violations of Plaintiff’s federal constitutional due
process rights, see, e.g., Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550,
1558 (10th Cir. 1993) (considering a Fourteenth Amendment due process claim based on

Plaintiff filed his original complaint on April 4, 2011 (Doc. 1), and was permitted to
proceed in forma pauperis on May 11, 2011 (Doc. 5).
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reputational damage), the Court has federal-question jurisdiction under 28 U.S.C. § 1331,
and Plaintiff could seek relief under 42 U.S.C. § 1983.
On September 30, 2011, Defendants filed a motion to dismiss pursuant do Fed. R.
Civ. P. 12(b)(1) and 12(b)(6), based respectively on lack of subject-matter jurisdiction
and failure to state a claim upon which relief can be granted. Defendants also sought to
invoke qualified immunity and the Colorado Governmental Immunity Act (in the event
the Court exercised supplemental jurisdiction to consider Plaintiff’s state-law claims).
(Doc. 20.)
On October 31, 2011, the parties convened for a scheduling conference before the
magistrate judge, but the conference was reset for November 18, 2011, because numerous
mailings sent to Plaintiff had been returned as undeliverable. (Doc. 24.) Plaintiff did not
appear at the rescheduled scheduling conference on November 18. The magistrate judge
received a voicemail an hour before that hearing was scheduled to commence, indicating
that Plaintiff had suffered an ulcer attack the previous evening and would not be able to
attend. Accordingly, the hearing was again rescheduled, for November 28, 2011. (Doc.
26.) Plaintiff once again failed to appear at the rescheduled hearing. This time, the
magistrate judge had received a voicemail from Plaintiff indicating that he did not have
time to litigate the case and wanted to dismiss his lawsuit. The magistrate judge ordered
defense counsel to contact Plaintiff to assist him with the process of dismissing the
action. (Doc. 27.) On December 5, 2011, defense counsel informed the magistrate judge
that counsel had called Plaintiff and left a voicemail recounting the events of the hearing
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and asking him to confirm his desire to dismiss the case, but that Plaintiff had not
responded. (Doc. 28.)
Consequently, on December 14, 2011, the magistrate judge issued an order to
show cause, pursuant to D.C.COLO.LCivR 41.1, no later than December 30, 2011, why
his complaint should not be dismissed for failure to prosecute and failure to comply with
court orders. The order warned Plaintiff that failure to respond or to show cause “will
result in a recommendation that this case be dismissed, with prejudice, in its entirety . . .
.” (Doc. 29.) Plaintiff never responded to the order to show cause.
As such, on January 4, 2012, the magistrate judge recommended that this Court
dismiss, with prejudice, Plaintiff’s case. The magistrate judge considered, pursuant to
Tenth Circuit precedent, a non-exhaustive list of factors for evaluating the
appropriateness of dismissal with prejudice, see Ehrenhaus v. Reynolds, 965 F.2d 916,
921 (10th Cir. 1992), and determined that “the Ehrenhaus factors weigh[] heavily in favor
of dismissal with prejudice.” (Doc. 30.) The magistrate judge’s recommendation
advised the parties that they could file objections to the proposed findings and
recommendation within fourteen days of service of the recommendation, and that timely,
specific objection to the recommendation was required to preserve an issue for de novo
review by the district court or on appeal. (Id.)
To date, the Court has received no word from Plaintiff.

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DISCUSSION
This Court has discretion to dismiss a case for failure to prosecute, although the
Court must consider certain factors before applying that “severe” sanction. Reed v.
Bennett, 312 F.3d 1990, 1195 (10th Cir. 2002) (internal quotation marks, citation
omitted); see also D.C.Colo.LCivR 41.1 (“A judicial officer may issue an order to show
cause why a case should not be dismissed for lack of prosecution or for failure to comply
with these rules, the Federal Rules of Civil Procedure, or any court order. If good cause
is not shown . . . , a district judge . . . may enter an order of dismissal with or without
prejudice.”); cf. Fed. R. Civ. P. 37(b)(2)(A)(v) (permitting dismissal of an action for
failure to obey a discovery order).
“In applying such a sanction, the district court must consider: (1) the degree of
actual prejudice to the opposing party; (2) the amount of interference with the judicial
process; and (3) the culpability of the litigant.” Reed, 312 F.3d at 1195 (citing Meade v.
Grubbs, 841 F.2d 1512, 1520-22 (10th Cir. 1988)); cf. Ehrenhaus, 965 F.2d at 921 (citing
Meade’s factors as three of five factors to be evaluated when considering dismissal for
disobeying discovery orders, additionally considering “(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”). “Only when these aggravating
factors outweigh the judicial system's strong predisposition to resolve cases on their
merits is outright dismissal with prejudice an appropriate sanction.” Reed, 312 F.3d at
1195 (alteration, internal quotation marks omitted) (citing Meade, 841 F.2d at 1521 n.7).
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Meanwhile, a party’s failure to object to a magistrate judge’s recommendation
may result in waiver of the right to challenge the recommendation. See United States v.
One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996) (“[A] party’s
objections to the magistrate judge’s report and recommendation must be both timely and
specific to preserve an issue for de novo review by the district court or for appellate
review.”); see also Vega v. Suther, 195 F.3d 573, 579-80 (10th Cir. 1999) (applying the
firm waiver rule in the appellate context); but see Morales-Fernandez v. I.N.S., 418 F.3d
1116, 1119 (10th Cir. 2005) (firm waiver does not apply on appeal when (1) a pro se
litigant was not informed of the timeframe for objection and the consequences of failure
to object, or (2) the interests of justice require review).
The Court agrees with the magistrate judge’s conclusion that dismissal with
prejudice of Plaintiff’s complaint is appropriate. The Court determines that Defendants
are prejudiced by Plaintiff’s failure to prosecute this case; that Plaintiff’s repeated nonappearances and delays interfere with the judicial process; and that Plaintiff is at fault for
failing to respond to court orders. See Reed, 312 F.3d at 1195. Also, Plaintiff was
warned that failure timely to show cause would result in a recommendation of dismissal
with prejudice, and later was warned that he must timely and specifically object to that
recommendation in order to preserve his objection for de novo review; yet Plaintiff has
remained silent. See One Parcel of Real Property, 73 F.3d at 1060; cf. Ehrenhaus, 965
F.2d at 921. Moreover, dismissal of this action is precisely what Plaintiff indicated he
wanted just before he stopped responding to communications in this case. See Fed. R.
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Civ. P. 41(a)(2) (“[A]n action may be dismissed at the plaintiff’s request . . . by court
order, on terms that the court considers proper.”).
CONCLUSION
The Court therefore adopts the recommendation of the magistrate judge and
DISMISSES WITH PREJUDICE this case pursuant to D.C.Colo.LCivR 41.1. The Court
also denies as moot Defendants’ motion to dismiss.

DATED this 22nd day of May, 2012.
BY THE COURT:
s/ David M. Ebel
_________________________
David M. Ebel
United States Circuit Judge
District of Colorado

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