McNeal v. Elder et al

Filing 92

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE of Dismissal for Failure to Prosecute, Failure to Appear, and Failure to Comply with Court Orders, by Magistrate Judge Michael J. Watanabe on 5/08/2017. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02073-LTB-MJW
PHINEHAS MCNEAL,
Plaintiff,
v.
W. FELDER,
LAWRENCE GALLEGOS,
BRIAN NULK,
MATTHEW WOODARD,
J. BATES,
CANYON PARCELL, and
WILLIAM FELDER,
Defendants.
RECOMMENDATION OF DISMISSAL FOR FAILURE TO PROSECUTE, FAILURE TO
APPEAR, AND FAILURE TO COMPLY WITH COURT ORDERS

MICHAEL J. WATANABE
United States Magistrate Judge
This case is before the Court pursuant to an Order Referring Case entered by
Judge Lewis T. Babcock on August 18, 2016. (Docket No. 40.)
In a Minute Order entered on April 3, 2017 (Docket No. 77), the Court ordered
Plaintiff to respond to Defendants’ first set of discovery on or before May 3, 2017.
Plaintiff’s responses had been due January 22, 2017. Plaintiff was advised of Fed. R.
Civ. P. 37 and was “expressly warned that failure to comply with this order will lead to
Plaintiff’s claims being dismissed under Fed. R. Civ. P. 37(b)(2)(A).” (Docket No. 77 at
2) (emphasis in original) This Minute Order was returned as undeliverable on March 14,
2017, but was resent to his case manager on March 17, 2017, after the Court confirmed
that Plaintiff was still incarcerated at Victorville Penitentiary. (Docket No. 84.)

When Plaintiff did not respond to Defendants’ first set of discovery on or before
May 3, 2017, Defendants filed a Renewed Motion for Sanctions and to Compel
Discovery. (Docket No. 88.) Defendants noted that in addition to not responding to their
first set of discovery, Plaintiff also failed to respond to the second set of discovery,
which was due on April 10, 2017. (Id. ¶¶ 7-10.)
Rule 41(b) of the Federal Rules of Civil Procedure provides in pertinent part:
If the plaintiff fails to prosecute or to comply with these rules or a court order,
a defendant may move to dismiss the action or any claim against it. Unless
the dismissal order states otherwise, a dismissal under this subdivision (b)
and any dismissal not under this rule–except one for lack of jurisdiction,
improper venue, or failure to join a party under Rule 19–operates as an
adjudication on the merits.
Fed. R. Civ. P. 41(b). Furthermore, Rule 16(f) provides in pertinent part that “[o]n
motion or on its own, the court may issue any just orders, including those authorized by
Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: . . . (C) fails to obey a scheduling or
other pretrial order.” Fed. R. Civ. P. 16(f). Rule 37(b)(2)(A) (ii)-(vii), which is referenced
in Rule 16(f), permits the following sanctions:
(ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated
matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order
except an order to submit to a physical or mental examination.
Fed. R. Civ. P. 37(b)(2)(A) (ii)-(vii) (emphasis added). In addition, Local Rule 41.1

provides:
A judicial officer may issue an order to show cause why a case should not
be dismissed for failure to prosecute or failure to comply with these rules,
the Federal Rules of Civil Procedure, or court order. If good cause is not
shown, a district judge or a magistrate judge exercising consent jurisdiction
may enter an order of dismissal with or without prejudice.
D.C.COLO.LCivR 41.1.
Based upon the foregoing, it is hereby
RECOMMENDED that the case be DISMISSED W ITHOUT PREJUDICE pursuant
to Fed. R. Civ. P. 16(f) and/or 41(b) and D.C.COLO.LCivR 41.1 based on Plaintiff’s
failure to prosecute and failure to comply with court orders. It is further
RECOMMENDED that Defendants’ request for sanctions be GRANTED and that
Defendants be awarded their reasonable attorney’s fees of $187.50 incurred as a result
of Plaintiff’s failure to serve answers to Defendants’ discovery requests.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985),
and also waives appellate review of both factual and legal questions. Makin v.

Colorado Dep’t of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.
Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).
Dated: May 8, 2017
Denver, Colorado

s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge