Robledo-Valdez v. Smelser et al

Filing 111

ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that this case is DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 41(b) by Judge Wiley Y. Daniel on 01/02/14.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-01833-WYD-KLM
CRAIG ROBLEDO-VALDEZ,
Plaintiff,
v.
DICK SMELSER;
RAY ROMERO;
ALBERT MARTINEZ;
TIANA LUCERO;
ELIJAH RIDGEWELL;
JUDY BREZINDINE;
OFFICER RAMOS;
OFFICER SANTISTEVAN;
RACHEL INFANTE;
COUNSELOR GONZALES;
SERGEANT MONREAL;
SERGEANT ACKER;
SHANE KOLANDER;
SERGEANT PELSTER;
TONY CAROCHI;
DANIEL CHAVEZ;
C. REYES;
D. CORTESE;
2 UNNAMED PPMU OFFICERS; and
RANDY MARTINEZ,
Defendants.
_____________________________________________________________________
ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
This matter is before the Court on the Order and Recommendation of United States
Magistrate Judge (“Recommendation”) filed on July 24, 2013. At issue in the

Recommendation are Orders to Show Cause issued by Magistrate Judge Mix on June 21,
2013 (the “Service OSC”, ECF No. 76) and on July 1, 2013 (the “Fees OSC”, ECF No. 77).
In the Service OSC, Magistrate Judge Mix ordered Plaintiff to show cause why the
Court should not recommend that the case against Defendants Dick Smelser, Ray Romero,
Tiano Lucero, Sergeant Peister, Daniel Chavez, and C. Reyes (the “Unserved Defendants”)
be dismissed pursuant to Fed. R. Civ. P. 4(m) and 41(b). (Recommendation at 1-2.) In the
Fees OSC, Magistrate Judge Mix ordered Plaintiff to show cause why the case should not
be dismissed in its entirety pursuant to Fed. R. Civ. P. 41(b) for failure to comply with the
Court’s Orders, the Federal Rules of Civil Procedure, and the
Local Rules of this Court. (Id. at 2.)
Magistrate Judge Mix notes that despite the Court’s clear warnings about the
consequences for failure to respond to the Orders to Show Cause, Plaintiff did not respond
to either the Service OSC or the Fees OSC by the show cause deadlines.
(Recommendation at 2.) She then found that “Plaintiff’s conduct to date demonstrates a
lack of interest in prosecuting this case as well as a failure to comply with several Court
Orders and the Local Rules of this Court”. (Id.) She further noted that because Plaintiff is
proceeding pro se, he was given multiple opportunities to prosecute his case. (Id.)
Magistrate Judge Mix then recommended that Plaintiff’s case be dismissed without
prejudice as a sanction pursuant to Fed. R. Civ. P. 41(b). (Recommendation at 3, 13.) In
doing so, she analyzed the background of the case, including Plaintiff’s failure to fulfill his
payment obligations as required by the Order granting him in forma pauperis status
pursuant to 28 U.S.C. § 1915 or to submit evidence regarding the inability to make partial
filing fee payments, his failure to effect service of the Unserved Defendants before the
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deadline expired, failure to provide sufficient contact information for the Court to do so, and
failure to provide good cause for the Court to find that an opportunity exists to cure the
service deficiency in the future. (Id. at 3-9.)
In the Order and Recommendation, Magistrate Judge Mix also analyzed the
appropriate factors under Ehrenhaus v. Reynolds, 965 F.2d 916, 918 (10th Cir. 1992).
(Recommendation at 10-13.) She found that Plaintiff’s failure to comply with numerous
Court Orders has interfered with the effective administration of justice, establishing that
Plaintiff has a lack of respect for the judicial process. (Id. at 10.) She further determined
that Plaintiff was personally at fault for his failure to comply with the numerous Court
Orders, that he was warned on multiple occasion that his continued failure to comply would
result in dismissal and, that any lesser sanction other than dismissal would not be practical.
(Id. at 11-13.) Finally, Magistrate Judge Mix ordered that the Service OSC and Fees OSC
be made absolute, as Plaintiff failed to show cause in response to same. (Id. at 13.)
On August 5, 2013, Plaintiff filed a timely Objection. A Response to the Objection
was filed on August 13, 2013. Plaintiff has since filed numerous documents with the Court.
Plaintiff’s Objection necessitates a de novo determination as to those specified proposed
findings or recommendations to which objection is made since the nature of the matter is
dispositive. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). “In order to conduct a de novo
review a court ‘should make an independent determination of the issues ...; [it] ‘is not to
give any special weight to the [prior] determination.’”

Ocelot Oil Corp. v. Sparrow

Industries, 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v. First City Nat.
Bank, 386 U.S. 361, 368 (1967) (internal quotation marks omitted)). While the court may

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place whatever reliance on the magistrate judge’s “recommendation its merit justifies, the
court must review the record in light of its own independent judgment.” Id.
Plaintiff asserts in the Objection that he responded to the Service OSC and Fees
OSC in one filing and mailed it, but that the document came back to him. He further notes
that he resent his Response to Show Cause Orders, and that it must have been received
after the Order and Recommendation were filed. This is accurate, as the Response to
Show Cause was docketed on July 29, 2013, five (5) days after the July 24, 2013
Recommendation. Thus, it appears that Plaintiff has responded to the Service OSC And
Fees OSC. (See ECF No. 80.)
In that response, Plaintiff notes as to the Fees OSC that he is in jail, is indigent, and
has no way of earning money. He further asserts that he asked his mother to make
payments, that she may have sent payment to the wrong case, and that she would send
a payment that week. Thus, Plaintiff states that he is making efforts to have the payments
made.1 Since the Objection was filed, Plaintiff has also filed documents explaining why he
has not paid any further fees. (See ECF Nos. 102, 103, and 108.)
As to the Service OSC, Plaintiff notes that Defendants seek to avoid being sued by
eliminating key personnel. He further asserts, among other things, that his responsibility
for providing useful/valid addresses at which to serve the Defendants was fulfilled at the
beginning of the case, that Corrections Corps of America or others would have the
addresses of the unnamed Defendants, and that he could not obtain such information
without receiving more punishment.

1

A payment of $50.00 was received on July 31, 2013 (ECF No. 81.) No further payments have
been made. Thus, Plaintiff is still in arrears on paying his filing fee.

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Plaintiff also notes that while he is currently incarcerated, he believes he can cure
the deficiencies once he is released and can go online and research CCA and the
Unserved Defendants. He further states that this case “is simply too difficult to litigate from
prison or jail”, “[e]specially in Texas.” (Objections at 4.) He asserts that sanctions are not
appropriate because “[i]ts [sic] not as though I blatantly disregarded the Courts [sic] orders.”
(Resp. to Show Cause Orders at 3.) Ultimately, Plaintiff argues that the interference with
the judicial process “is the Defendants’ fault for 1.) Running and hiding to avoid being
served; 2.) Finding ways to punish [him] and/or incarcerate [him] for trying to obtain the
addresses of ANY prison officials or D.O.C. staff. Or Use computers.” (Id.)
I acknowledge the difficulties that a prisoner faces while incarcerated in pursuing a
lawsuit. Nonetheless, this does not provide a basis to disregard or fail to comply with
Court’s Orders, the Federal Rules of Civil Procedure and the Local Rules of this Court, and
the requirements of suit, including filing fees. Magistrate Judge Mix provides detailed
bases in law and in fact for her ruling and recommendation to dismiss the case as a
sanction. While Plaintiff makes excuses and attempts to shift the blame to the Defendants,
the fact remains that he has set forth no basis as to why the Order and Recommendation
are wrongly decided or should be overruled. The proper factors were considered under
Ehrenhaus v. Reynolds, 965 F.2d 916, 918 (10th Cir. 1992), and I agree with Magistrate
Judge Mix that dismissal is appropriate under Fed. R. Civ. P. 41(b) based on Plaintiff’s
failure to comply with Court Orders and obligations under law.2 Accordingly, it is

2

This is true despite the fact that Plaintiff (1) ultimately responded to the Orders to Show Cause,
(2) provided addresses for three of the Unserved Defendants on November 5, 2013 (ECF No. 106), and
(3) filed documents after his Objection explaining why he has not yet made payments. These do not
overcome Plaintiff’s previous failures to comply with court orders and rules.

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ORDERED that the Order and Recommendation of United States Magistrate Judge
filed July 24, 2013 (ECF No. 78) is AFFIRMED AND ADOPTED. In accordance therewith,
it is
ORDERED that this case is DISMISSED WITHOUT PREJUDICE pursuant to Fed.
R. Civ. P. 41(b).
Dated: January 2, 2014
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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