Parker v. Boehner et al

Filing 9

ORDER adopting 8 Recommendation of United States Magistrate Judge. The amended complaint [# 6 ] of the plaintiff is DISMISSED without prejudice. By Judge Robert E. Blackburn on 5/12/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 11-cv-03400-REB-CBS
TRENTON H. PARKER,
Plaintiff,
v.
CONGRESSMAN JOHN BOEHNER, Speaker of The United States House of
Representatives,
CONGRESSWOMAN NANCY PELOSI,
DENNIS HASTERT,
NEWT GINGRICH, former spe[a]kers of the House of Representatives,
CONGRESSMAN MIKE COFFMAN,
CONGRESSWOMAN DIANA DEGETTE,
CONGRESSMAN CORY GARDNER,
CONGRESSMAN DOUG LAMBORN,
CONGRESSMAN ED PERLMUTTER,
CONGRESSMAN JARED POLIS,
CONGRESSMAN SCOTT TIPTON, and
SCOTT GESSLER, Colorado Secretary of State,
Defendants.

ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the Recommendation of United States Magistrate
Judge [#8]1 filed June 5, 2012. I approve and adopt the recommendation.
No objections to the recommendation were filed. Thus, I review it only for plain
error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d

1

“[#8]” 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.

1116, 1122 (10th Cir. 2005).2 Finding no error, much less plain error, in the
recommended of the magistrate judge, I find and conclude that the recommendation
should be approved and adopted as an order of this court. Appropriately, the
magistrate judge recommends that the complaint of the plaintiff be dismissed without
prejudice for failure prosecute this case, failure to comply with the orders of this court,
and failure to comply with the rules applicable to this case.
After the initial complaint [#1] and amended complaint [#6] were filed, the court
entered an Order To Show Cause [#7] directing the plaintiff, Trenton Parker, to show
cause why this case should not be dismissed based on the failure of Mr. Parker to serve
the defendants, to prosecute this case, to comply with the orders of this court, and to
comply with the rules applicable to this case. Mr. Parker was warned in that order [#7]
that his failure to respond to the Order To Show Cause [#7] may result in the dismissal
of this case without prejudice. Mr. Parker did not file a response to the Order To Show
Cause [#7], and he has made no effort to prosecute this case since he filed his
amended complaint [#6] on January 11, 2012.
The magistrate judge recommends that this case be dismissed without prejudice
based on the failure of Mr. Parker to serve the defendants, to prosecute this case, to
comply with the orders of this court, and to comply with the rules applicable to this case.
“A district court undoubtedly has discretion to sanction a party for failing to
prosecute or defend a case, or for failing to comply with local or federal
procedural rules.” Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir.2002).
When dismissing a case without prejudice, “a district court may, without
abusing its discretion, enter such an order without attention to any
particular procedures.” Nasious [v. Two Unknown BICE Agents], 492
F.3d [1158,] at 1162 [(10th Cir. 2007)]. A dismissal with prejudice, on the
other hand, is a harsh remedy, and the district court should ordinarily first
2

This standard pertains even though plaintiff is proceeding pro se in this matter. MoralesFernandez, 418 F.3d at 1122.

2

consider certain criteria. Id.
AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Associates, Inc., 552 F.3d 1233,
1236 (10th Cir. 2009). The magistrate judge recommends the dismissal of this case
without detailed consideration of the criteria which must be considered when dismissing
a case with prejudice as a sanction. I agree with the analysis of the magistrate judge.
Further, if the criteria outlined in Gripe v. City of Enid, Okl., 312 F.3d 1184,
1188 (10th Cir. 2002), citing Ehrenhaus v. Reynolds, 965 F.2d 916, 918 (10th Cir.
1992), are considered, dismissal of this case is appropriate. There has been no
prejudice to the defendants because they have not been served. The plaintiff has
interfered with the judicial process by filing a case with this court and then refusing to
prosecute the case. The plaintiff is culpable because the failure to prosecute was
caused solely by the plaintiff. The plaintiff was warned that dismissal was a possible
sanction for his failure to prosecute, and there is no indication that a sanction lesser
than dismissal without prejudice would be efficacious.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#8] filed
June 5, 2012, is APPROVED and ADOPTED as an order of this court;
2. That the amended complaint [#6] of the plaintiff is DISMISSED without
prejudice based on the failure of the plaintiff to serve the defendants, to prosecute this
case, to comply with the orders of this court, and to comply with the rules applicable to
this case; and

3

3. That under FED. R. CIV. P. 58, judgment SHALL ENTER against the plaintiff,
Trenton H. Parker, and SHALL DISMISS the complaint of the plaintiff [#6] without
prejudice.
Dated May 12, 2014, at Denver, Colorado.
BY THE COURT:

4