Billinger v. Doe Number 01, et al.

Filing 36

ORDER Adopting and Affirming 33 Report and Recommendations: this case is dismissed without prejudice, by Judge Christine M. Arguello on 10/31/12.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 12-cv-01507-CMA-CBS
BRADFORD JOHN CONDE BILLINGER,
Plaintiff,
v.
JOHN DOE AND JANE DOE NUMBER 01-36, individual capacity,
PEARL CHANG, Individual capacity,
BURT RIZZO, Individual capacity,
MARK PHILLIPS, Individual capacity,
RODGER PITCAIRN, Individual capacity,
MICHAEL AYTES, Individual capacity,
ANDREW PERRY, Individual capacity,
TOM PAAR, Individual capacity,
EVY SAHLI, Individual capacity,
EFREN HERNANDEZ, Individual capacity,
TINA WILLIAMS, Individual capacity,
STEPHEN DEAN, Individual capacity,
DAVE MITCHELL, Individual capacity,
CRAIG BAGEMIHL, Individual capacity,
CITY OF LAS VEGAS, NEVADA, and
EDWARD BUTLER, Individual capacity,
Defendants.

ORDER ADOPTING AND AFFIRMING OCTOBER 4, 2012
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This case was referred to United States Magistrate Judge Craig B. Shaffer,
pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72. On October 4, 2012, the
Magistrate Judge issued a Recommendation, in which he recommended that this
case be dismissed without prejudice. (Doc. # 33.)

On August 8, 2012, the Magistrate Judge issued an order, striking Plaintiff’s
original Complaint (Doc. # 1) and ordering Plaintiff to submit an amended complaint by
August 29, 2012. (Doc. # 23.) The Magistrate Judge advised Plaintiff that failure to
comply with his Order “may result in a Recommendation . . . that this civil action be
dismissed.” (Doc. # 23 at 5.) Despite this warning, Plaintiff did not file an amended
complaint. Thus, the Magistrate Judge recommends dismissing this action without
prejudice for failure to prosecute.
On October 17, 2012, Plaintiff, proceeding pro se,1 filed timely objections to the
Recommendation. (Doc. # 34.) When a magistrate judge issues a recommendation
on a dispositive matter, Fed. R. Civ. P. 72(b)(3) requires that the district court judge
“determine de novo any part of the magistrate judge’s [recommendation] that has been
properly objected to.” In conducting its review, “[t]he district court judge may accept,
reject, or modify the recommendation; receive further evidence; or return the matter
to the magistrate judge with instructions.” Id. Accordingly, the Court has conducted a
de novo review of this matter, including carefully reviewing all relevant pleadings, the
Recommendation, and Plaintiff’s Objection to the Recommendation.
As the Magistrate Judge found, Plaintiff’s Complaint (Doc. # 1) does not comply
with the Federal Rules of Civil Procedure or the Local Rules of Practice for the United

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Because Plaintiff is proceeding pro se, the Court “review[s] his pleadings and other
papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.”
Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007) (citing Haines v. Kerner, 404
U.S. 519, 520 (1972)).

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States District Court for the District of Colorado. (See Doc. # 23 at 3-4) (identifying
various deficiencies in Plaintiff’s Complaint). The Magistrate Judge expressly ordered
that Plaintiff “shall have until Wednesday, August 29, 2012, to submit an Amended
Complaint.” (Doc. # 23 at 4.) Not only did Plaintiff fail to submit an Amended Complaint by August 29, 2012, Plaintiff has still failed to submit an Amended Complaint as of
the date of this Order.
In his Objection, Plaintiff fails to raise any new issues of law or fact that would
warrant a conclusion different from the one reached by the Magistrate Judge. Although
Plaintiff raises a myriad of irrelevant issues, he offers no explanation of why he has
failed to submit an amended complaint, as ordered by the Magistrate Judge. As such,
the Court agrees that this case should be dismissed for failure to prosecute and for
failure to comply with a court order. See AdvantEdge Bus. Grp. V. Thomas E.
Mestmaker, 552 F.3d 1233, 1236 (10th Cir. 2009) (internal quotation marks and citation
omitted) (“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 procedural rules.”);
Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 736 (6th Cir. 2008) (“Rule 41(b)
of the Federal Rules of Civil Procedure confers on district courts the authority to dismiss
an action for failure of a plaintiff to prosecute the claim or comply with the Rules or any
order of the court.”). Because it is possible that Plaintiff may amend his complaint so as
to state a claim upon which relief may be granted, the Court agrees with the Magistrate
Judge that dismissal should be without prejudice. See Brereton v. Bountiful City Corp.,

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434 F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal with prejudice is appropriate where
a complaint fails to state a claim . . . and granting leave to amend would be futile.”).
Based on the Court’s de novo review, this Court concludes that Magistrate
Judge Shaffer’s Recommendation is correct. Therefore, Plaintiff’s Objections are
OVERRULED and the Court hereby ADOPTS the Recommendation of the United
States Magistrate Judge as the findings and conclusions of this Court.
Accordingly, it is ORDERED that this case is DISMISSED WITHOUT
PREJUDICE.
DATED: October

31

, 2012
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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