Dowling v. Black and McDonald

Filing 20

ORDER adopting Recommendation of the United States Magistrate Judge. Recommendation of United States Magistrate Judge [# 17 ] is APPROVED AND ADOPTED as an order of this court. Plaintiff's claims against defendant are DISMISSED WITH PREJUDICE. Judgment shall enter. By Judge Robert E. Blackburn on 5/1/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-01719-REB-KMT
THERESA L. DOWLING,
Plaintiff,
v.
BLACK AND MCDONALD,
Defendant.

ORDER ADOPTING RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matter before me is the Recommendation of United States Magistrate
Judge [#17],1 filed April 5, 2013. No objections having been filed to the
recommendation, I review it only for plain error.2 See Morales-Fernandez v.
Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).3 Finding

1

“[#17]” 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

The clerk of the court mailed the magistrate judge’s recommendation to plaintiff at the address
on file, but it was returned as undeliverable. (See [#18], filed April 15, 2013.) Despite her pro se status, it
is plaintiff’s obligation to apprise the court within five days of any change of mailing address, email
address, or telephone number. D.C.COLO.LCivR 10.1.M.
3

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

no such error in the magistrate judge’s recommended disposition, I find and conclude
that recommendation should be approved and adopted.
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 admittedly an
extreme sanction, the circumstances chronicled in the magistrate judge’s
recommendation demonstrate indisputably a “clear record of delay [and] contumacious
conduct” 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 – bordering on barratry –
against this defendant (as well as others), 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.4
THEREFORE, IT IS ORDERED as follows:
1. That Recommendation of United States Magistrate Judge [#17], filed April
5, 2013, 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

4

I again caution plaintiff that her continued practice of disregarding court orders and failing to
prosecute her numerous civil actions with due diligence may result in court-imposed restrictions on her
ability to file future cases in this district.

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prosecute;
3. That judgment with prejudice SHALL ENTER on behalf of defendant, Black
and McDonald, against plaintiff, Theresa L. Dowling, on all claims for relief and causes
of action asserted in this action; and
4. That defendant is AWARDED its costs to be taxed by the clerk of the court in
the time and manner prescribed by Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated May 1, 2013, at Denver, Colorado.
BY THE COURT:

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