Morris v. Samuels et al

Filing 55

ORDER; 52 Order to Show Cause is MADE ABSOLUTE. Thus, it is FURTHER ORDERED that Plaintiff's 36 Third Amended Complaint is DISMISSED without prejudice. IT IS FURTHER ORDERED that the Clerk of Court shall CLOSE this case, by Magistrate Judge Kristen L. Mix on 2/25/16. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01296-KLM
KENNETH A. MORRIS,
Plaintiff,
v.
DAVID ALLRED, Clinical Director,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Order to Show Cause [#52].1 The Court
ordered Plaintiff to show cause “as to why this case should not be dismissed for his failure
to comply with the Local Rules and to prosecute this lawsuit.” Order to Show Cause [#52]
at 2. Plaintiff’s deadline for compliance with the Order to Show Cause [#52] was January
26, 2016. To date, Plaintiff has neither filed a response nor contacted the Court in any
manner.
Although Plaintiff is proceeding in this lawsuit without an attorney, he bears the
responsibility of prosecuting his case with due diligence. The Court must liberally construe
pro se filings; however, pro se status does not excuse the obligation of any litigant to
comply with the same rules of procedure that govern other litigants. See Green v. Dorrell,

1

“[#52]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court's case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.

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969 F.2d 915, 917 (10th Cir. 1992); see also Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994).
As noted in the Order to Show Cause, when Plaintiff instigated this lawsuit, he was
an incarcerated individual. See Compl. [#1]. On October 20, 2015, the Court held a
Scheduling Conference, in which Plaintiff informed the Court that he would be released
from custody on November 2, 2015. See generally Minutes [#50]. In the Notice, Defendant
confirms that “Plaintiff was released to the public [on November 2, 2015], and did not enter
the custody of a halfway house or other community corrections center.” [#51] at 1.
Defendant states that Plaintiff has not contacted him to provide an updated address or
other contact information. See also Motion to Dismiss [#54] at 1-2 (stating that as of
February 12, 2016, Plaintiff still had not contacted Defendant since his release from
incarceration). Plaintiff has also not contacted the Court since the hearing on October 20,
2015. The Order to Show Cause issued on January 5, 2016, was returned to the Office of
the Clerk as undeliverable [#53]. The postal service printed on the return envelope: “Return
to Sender, Not Deliverable as Addressed, Unable to Forward.” [#53].
D.C.COLO.LCivR 5.1(c) requires that any change of address (or other contact
information) be noticed to the Court within five days of such change. Plaintiff is thus under
a continuing obligation to inform the Court of any changes in his contact information. To
date, the docket does not reflect the filing of a notice by Plaintiff regarding an address
change. Because Plaintiff has failed to update his present contact information with the
Court, the Court and Defendant have no means of contacting him in connection with this
litigation.
The Court warned Plaintiff in the Order to Show Cause that his failure to timely
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comply with the instruction to respond would result in dismissal of this matter due to
Plaintiff’s failure to prosecute. [#52] at 2. Given Plaintiff’s failure to comply with the
instruction stated in the Order to Show Cause [#52], the Court considers whether Plaintiff’s
case should be dismissed as a sanction pursuant to Fed. R. Civ. P. 41(b). See Rogers v.
Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th Cir. 2007) (noting that Court has
inherent authority to consider sua sponte whether a case should be involuntarily dismissed
due to Plaintiff’s failure to prosecute); 9 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2369, at 576-77 & n.1 (3d ed. 2008).
In Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992), the Tenth Circuit
enumerated the factors to be considered when evaluating grounds for dismissal of an
action.2 The factors are: “(1) the degree of actual prejudice to the defendant; (2) the
amount of interference with the judicial process; . . . (3) the culpability of the litigant; (4)
whether the court warned the party in advance that dismissal of the action would be a likely
sanction for noncompliance; and (5) the efficacy of lesser sanctions.” Id. at 921 (internal
quotations and citations omitted); see also Gates Rubber Co. v. Bando Chems. Indus., 167
F.R.D. 90, 101 (D. Colo. 1996). “[D]ismissal is warranted when ‘the aggravating factors
outweigh the judicial system’s strong predisposition to resolve cases on their merits.’”
Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1144 (10th Cir. 2007)
(quoting Ehrenhaus, 965 F.2d at 921).

2

The Court notes that the standards for dismissal pursuant to Rule 37 and Rule 41(b) are
essentially the same. Mobley v. McCormick, 40 F.3d 337, 340-41 (10th Cir. 1994) (“[W]e see no
principled distinction between sanctions imposed for discovery violations and sanctions imposed
[pursuant to Rule 41(b), and] . . . involuntary dismissals should be determined by reference to the
Ehrenhaus criteria.”).

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Here, it is clear that Plaintiff has no present intention of seeking resolution of this
matter on the merits. Plaintiff has failed to update his contact information with the Court
in the nearly four months since his release from incarceration and, thus, the Court and
Defendant have no means of contacting him in connection with this litigation. Further,
Plaintiff has disobeyed a direct order of the Court by failing to file a response to the Order
to Show Cause regarding his intent to prosecute this case. These facts demonstrate that
Plaintiff has abandoned his lawsuit, and consideration of the above-stated Ehrenhaus
factors weigh in favor of dismissal without prejudice.3 Accordingly,
IT IS HEREBY ORDERED that the Order to Show Cause [#52] is MADE
ABSOLUTE. Thus,
IT IS FURTHER ORDERED that Plaintiff’s Third Amended Complaint [#36] is
DISMISSED without prejudice.
IT IS FURTHER ORDERED that the Clerk of Court shall CLOSE this case.

Dated: February 25, 2016

3

Dismissal with prejudice “represents an extreme sanction appropriate only in cases of
willful misconduct,” and should be used “as a weapon of last, rather than first, resort.” Ehrenhaus,
965 F.2d at 920; see Butler v. Butierres, 227 F. App’x 719, 720 (10th Cir. Feb. 2, 2007) (remanding
dismissal with prejudice for determination of willfulness).

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