Dowling v. Xcel Energy

Filing 60

ORDER ADOPTING 56 RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE. Plaintiff's claims against defendant are DISMISSED WITH PREJUDICE. Judgment SHALL ENTER on behalf of defendant Xcel Energy against plaintiff Theresa L. Dowling on all claims. Defendant is AWARDED its costs. By Judge Robert E. Blackburn on 12/4/12. (kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 11-cv-03173-REB-MEH
THERESA L. DOWLING,
Plaintiff,
v.
EXCEL ENERGY,
Defendant.

ORDER ADOPTING RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matter before me is the Recommendation of United States Magistrate
Judge [#56]1 filed October 12, 2012. No objections having been filed to the
recommendation, I review it only for plain error. See Morales-Fernandez v.
Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).2 Finding
no such error in the magistrate judge’s recommended disposition, I find and conclude
that recommendation should be approved and adopted.

1

“[#56]” 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 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 magistrate judge recommends that this lawsuit be dismissed with prejudice
as a sanction for plaintiff’s failure to comply with the duly issued orders of the court and
failure to prosecute this action. Although dismissal with prejudice is undoubtedly an
extreme sanction, the circumstances chronicled in the magistrate judge’s
recommendation indisputably demonstrate a “clear record of delay [and] contumacious
conduct by the plaintiff” warranting the imposition of such a penalty. Meade v. Grubbs,
841 F.2d 1512, 1520 n.6 (10th Cir. 1988).
The magistrate judge thoroughly considered all of the relevant factors prescribed
by Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992). Given both plaintiff’s
conduct in this case and her lengthy history of past litigation, I concur with the
magistrate judge that nothing short of a dismissal with prejudice is sufficient to deter
plaintiff from a clear pattern of abuse of the judicial process.3
THEREFORE, IT IS ORDERED as follows:
1. That Recommendation of United States Magistrate Judge [#56] filed
October 12, 2012, is APPROVED AND ADOPTED as an order of this court;
2. That plaintiff’s claims against defendant are DISMISSED WITH PREJUDICE
as a sanction for failure to comply with the duly issued orders of the court and failure to
prosecute;
3. That judgment SHALL ENTER on behalf of defendant Xcel Energy against
plaintiff Theresa L. Dowling on all claims for relief and causes of action; provided, that

3

I also echo the magistrate judge’s admonition to plaintiff “that her continued practice of filing
frivolous lawsuits, ignoring court orders, or failing to prosecute her actions with due diligence may result in
court-imposed restrictions on her ability to file future cases in this district.” (Recommendation of United
States Magistrate Judge at 9 [#56], filed October 12, 2012.)

2

the judgment shall be with prejudice; and
4. That defendant is AWARDED its costs to be taxed by the clerk of the court
pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated December 4, 2012, at Denver, Colorado.
BY THE COURT:

3