Miller v. Lusk et al

Filing 145

ORDER adopting 130 Report and Recommendations. finding as moot 123 Motion to Compel; finding as moot 144 Motion for Summary Judgment. by Judge R. Brooke Jackson on 1/29/14.(rbjcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 11-cv-03365-RBJ-BNB
DANIEL BRENT MILLER,
Plaintiff,
v.
CORPERAL LUSK, Teller Sheriff,
DEPUTY BAST, Teller Sheriff,
DEPUTY ODELL, Teller Sheriff, and
DEPUTY MARTINEZ, Teller Sheriff,
Defendants.

ORDER

This case is before the Court on the recommendation of United States Magistrate Judge
Boyd N. Boland that this case be dismissed with prejudice. [ECF No. 130]. The motion is
granted.
STANDARD OF REVIEW
Following the issuance of a magistrate judge’s recommendation on a dispositive matter
the district court judge must “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). In this instance a timely objection
was not filed.
By way of further explanation, the magistrate judge’s recommendation at issue was
issued on September 25, 2013. It included an advisement regarding the parties’ right to file
written objections within 14 days after service and a warning that failure to do so waives de novo

1

review. Recommendation [ECF No. 130] at 6 n.3. No objections were filed within that time
period.
Mr. Miller filed an untimely motion for an enlargement of time to file an objection on
October 28, 2013. [ECF No. 139]. He stated that a series of lockdowns during October 2013 at
the Fremont Correctional Facility of the Colorado Department of Corrections, where he was then
an inmate and also a new movement schedule implemented by the facility on October 15, 2013,
had interfered with his ability to access the law library and, therefore, his preparation of an
objection. He requested an additional 30 days, to November 24, 2013, to file an objection. Id. at
2.
On October 30, 2013 this Court denied the motion, noting that his excuses were not
credible. [ECF No. 140]. Nevertheless, the Court sua sponte granted an additional 17 days (the
14 days normally allowed for the filing of an objection plus three days to account for service)
from the date of the filing of his motion for an enlargement, i.e., to November 14, 2013. The
Court expressly warned Mr. Miller that it would not consider any objection filed after that date.
Id.
Mr. Miller did not file an objection to the magistrate judge’s recommendation by that
extended deadline. Instead, he filed an objection a month later, on December 16, 2013. Because
the objection was not timely filed, even with respect to the extension previously given, the Court
does not consider it.
FACTS
Mr. Miller, representing himself pro se, filed his “Prisoner Complaint” on January 1,
2012. He alleged that in 2011, while he was incarcerated in the Teller County Detention Center,

2

sheriff’s officers applied excessive force to him on several occasions in violation of the Eighth
Amendment’s prohibition of cruel and usual punishment.
The pending matter does not, however, concern the merits of his claims. Judge Boland’s
recommendation that the case be dismissed with prejudice is based on a continuing series of Mr.
Miller’s failure to comply with court orders and his engaging in abusive litigation tactics, as
detailed in the recommendation. The recommendation also notes that the magistrate judge had
advised Mr. Miller of the inappropriateness of his actions on more than one previous occasion
and had warned him that a continuation of such practices could result in sanctions, including
dismissal of the case with prejudice.
Ultimately the magistrate judge issued an order pursuant to local rule D.C.COLO.LCivR
41.1 (a copy of the local rules had previously been provided to Mr. Miller at his request)
directing Mr. Miller to show cause why his case should not be dismissed for lack of prosecution
or for failure to comply with procedural rules and court orders. The magistrate judge found that
Mr. Miller’s explanation for his conduct (limited access to a law library, the effect of
psychotropic medication) was “unconvincing given the numerous coherent and responsive
papers filed by the plaintiff since this case was initiated.” Recommendation at 4. Judge Boland
found that he had “repeatedly ordered the plaintiff to cease filing inappropriate papers;” that the
“plaintiff has simply ignored my orders;” and that “the plaintiff has failed to show good cause for
his noncompliance with my orders.” Id.
The magistrate judge acknowledged that, as a pro se plaintiff, Mr. Miller’s pleadings are
entitled to a liberal construction, citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
However, he also noted that one’s pro se status not relieve him of the obligation to follow
procedural rules and court orders that govern other litigants, citing Oklahoma Federated Gold

3

and Numismatics v. Blodgett, 24 F.3d 136, 139 (10th Cir. 1994). Id. at 4. The court also applied
the factors set out in Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) in assessing
whether the extreme sanction of dismissal of the case is appropriate. Judge Boland found that
such a sanction is appropriate because (1) Mr. Miller’s litigation conduct has prejudiced the
defendants by causing substantial delay; (2) it has interfered with the judicial process; (3) he has
been provided with explanations as to how to conform his conduct; (4) but he has ignored court
orders, notwithstanding warnings that continued misconduct could result in dismissal of the case
with prejudice. Id. at 5.
The magistrate judge concluded that “[a] sanction less than dismissal with prejudice
would not be effective.” Accordingly, he recommended that sanction to this Court. Id. at 6.
CONCLUSIONS
As indicated above, Mr. Miller waived his right to a de novo review by his failure to file a
timely objection to the recommendation. Frankly, his failure to do so, notwithstanding this
Court’s sua sponte grant of additional time and warning that it would not consider an objection
filed after the extended deadline, is reflective of the conduct that ultimately exceeded the
tolerance of the magistrate judge.
Nevertheless, I have reviewed pretty much the entire file to get a sense for myself of the
actions, the directives, warnings, orders, etc. that got us to this point. I have done so with the
teachings of the United States Supreme Court and the Tenth Circuit regarding treating pro se
pleadings more liberally well in mind. I am satisfied that the magistrate judge applied the
applicable law, including procedural rules, correctly and with patience. I am satisfied that the
magistrate judge’s factual findings were not clearly erroneous – indeed, not erroneous at all.

4

There comes a time when “enough is enough.” This Court fully endorses and supports the
magistrate judge’s finding that that time came in this case.
Order
1. The recommendation of the magistrate judge [ECF No. 130] is ACCEPTED AND
ADOPTED.
2. This civil action and all claims therein are dismissed with prejudice. Pursuant to Fed.
R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1 defendants are awarded their costs.
3. Defendants’ Motion to Compel [ECF No. 123] is MOOT.
4. Defendants’ Motion for Summary Judgment [ECF No. 144] is MOOT. The Court
apologizes to the parties for its failure to act on the magistrate judge’s recommendation sooner,
which might have prevented the time and effort involved in the preparation of this motion.
DATED this 29th day of January, 2014.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

5