Dowling v. Black and McDonald/Custom Lighting Services

Filing 85

ORDER OVERRULING OBJECTIONS TO AND ADOPTING 84 RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE. Claims of the plaintiff are DISMISSED WITH PREJUDICE as a sanction for the unexcused failure to prosecute and failure to comply with the orders of the court. Defendant's Motion for Leave To File Surreply To Plaintiff's Unopposed Amended Response To the Order To Show Cause 82 is DENIED as moot. Judgment SHALL ENTER in favor of the defendant and against the plaintiff on all claims. Defendant is AWARDED its costs. By Judge Robert E. Blackburn on 2/25/13. (kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 11-cv-02697-REB-KMT
THERESA L. DOWLING,
Plaintiff,
v.
BLACK AND McDONALD/CUSTOM LIGHTING SERVICES,
Defendant.

ORDER OVERRULING OBJECTIONS TO AND ADOPTING
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the Recommendation of United States Magistrate
Judge [#84]1 filed August 2, 2012. I adopt the recommendation and dismiss this lawsuit
with prejudice as a sanction for the plaintiff’s failure to prosecute and failure to comply
with the duly issued orders of the court.
No objections the recommendation have been filed by the parties. Therefore, I
review the recommendation only for plain error. See Morales-Fernandez v.
Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).2 Finding

1

“[#84]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s electronic case filing and management system (CM/ECF). I use this
convention throughout this order.
2

This standard pertains even though plaintiff is proceeding pro se in this matter. MoralesFernandez, 418 F.3d at 1122. In addition, because plaintiff is proceeding pro se, I have construed his
pleadings more liberally and held them to a less stringent standard than formal pleadings drafted by
lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007);
Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)).

no error, much less plain error, I find and conclude that the recommendation of the
magistrate judge should be approved and adopted.
The plaintiff is proceeding pro se. Thus, I have construed her pleadings more
liberally and held them to a less stringent standard than formal pleadings drafted by
lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167
L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519,
520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)).
The recommendation is detailed and well-reasoned. The magistrate judge
details the plaintiff’s repeated and unexcused failures to communicate with opposing
counsel, participate in the orderly development of the case, and timely respond to
orders duly issued by the court. She appropriately considered the relevant factors that
inform the decision whether to dismiss a case with prejudice as a sanction for such
habitual failures. See Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992).
Given the history of this case, I concur with the magistrate that no sanction short of a
dismissal with prejudice will be efficacious to prevent further abuses by the plaintiff in
the future.
Therefore, I find and conclude that the arguments advanced, authorities cited,
and findings of fact, conclusions of law, and recommendation proposed by the
magistrate judge should be approved and adopted.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#84] filed
August 2, 2012, is APPROVED AND ADOPTED as an order of this court;
2. That claims of the plaintiff are DISMISSED WITH PREJUDICE as a sanction
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for the unexcused failure to prosecute and failure to comply with the orders of the court;
3. That the Defendant’s Motion for Leave To File Surreply To Plaintiff’s
Unopposed Amended Response To the Order To Show Cause [#82] filed July 25,
2012, is DENIED as moot;
4. That judgment SHALL ENTER in favor of the defendant, Black and McDonald
/ Custom Lighting Services, against the plaintiff, Theresa L. Dowling, on all claims for
relief and causes of action asserted in this case;
5. That under 28 U.S.C. § 1915(a)(3), I certify that any appeal from the
recommendation [#84] and this order would not be taken in good faith and, therefore,
any appeal from the recommendation and this order may not be taken in forma
pauperis;
6. That if the plaintiff files a notice of appeal, she must pay the full $455.00
appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit; and
7. That defendant is AWARDED its costs, to be taxed by the clerk of the court
under Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated February 25, 2013, at Denver, Colorado.
BY THE COURT:

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