Rix v. University of Colorado Health
ORDER granting 44 Motion to Dismiss; denying as moot 48 Motion for Summary Judgment by Judge R. Brooke Jackson on 6/1/17. (jdyne, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 16-cv-01448-RBJ
SHERRY F. RIX,
UNIVERSITY OF COLORADO HOSPITAL AUTHORITY,
This matter is before the Court on two pending motions filed by defendant University of
Colorado Hospital Authority (“UCHA”): (1) a motion to dismiss under Rules 41(b) and 37, ECF
No. 44; and (2) a motion for summary judgment, ECF No. 48. For the reasons below, the Court
GRANTS defendant’s motion to dismiss and therefore and DENIES its motion for summary
judgment [ECF No. 48] as moot.
In this action, plaintiff Sherry Rix alleges, among other things, racial and sexual
harassment and retaliation by her former employer, UCHA. See generally ECF No. 1. She
brings multiple claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. Id.
For purposes of this motion, however, the pertinent facts are those which occurred after
defendant served plaintiff with its First Set of Interrogatories and Requests for Production on
December 13, 2016. See ECF No. 44; ECF No. 44-1 (defendant’s First Set of Interrogatories and
Requests for Production of Documents to plaintiff). After receiving those interrogatories and
requests, plaintiff failed to timely object or respond within the requisite 33-day time period. ECF
No. 41 at 2.
Defendant subsequently brought plaintiff’s noncompliance to the Court’s attention. On
March 3, 2017 the Court issued an order directing plaintiff to object or respond to defendant’s
interrogatories and requests no later than March 17, 2017. Id. In that order, I warned plaintiff
that failure to comply could result in sanctions, including the dismissal of her case. Id. By all
indications, plaintiff has still failed to properly object or respond to UCHA’s interrogatories and
requests. 1 Defendant subsequently moved to dismiss plaintiff’s complaint with prejudice under
Rule 41(b) and Rule 37 on March 22, 2017. ECF No. 44. It then filed a motion for summary
judgment roughly a week later on March 31, 2017—the amended deadline for dispositive
motions in this case. ECF Nos. 39, 48.
II. STANDARD OF REVIEW
A. Pro Se Party.
When a case involves a pro se party, the court will “review his pleadings and other papers
liberally and hold 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). Nevertheless, “it is [not] the proper function
of the district court to assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). A “broad reading” of a pro se plaintiff’s pleadings “does not
relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim
Construing plaintiff’s filings liberally, she appears to vaguely “object” to one of defendant’s requests for
information in her response to defendant’s motion to dismiss. See ECF No. 47 at 3. However, defendant
represents in its motion that at the time of filing (which was five days after the deadline I set for
plaintiff’s response in my prior order, see ECF No. 41), plaintiff had not formally provided defendant
with any objections or responses, ECF No. 44 at 1. Thus, this “objection” still comes late. Furthermore,
it is in the wrong format (buried in a response to a pending motion) and comes only after defendant has
had to once again incur additional expenses filing a motion to elicit any kind of response.
could be based.” Id. Furthermore, pro se parties must “follow the same rules of procedure that
govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (internal quotation
marks and citations omitted).
B. Rule 41(b) and Rule 37.
Federal Rule of Civil Procedure 41(b) provides, in part, that “[i]f the plaintiff fails . . . to
comply with . . . a court order, a defendant may move to dismiss the action or any claim against
it.” A dismissal under Rule 41(b) “operates as an adjudication on the merits.” Fed. R. Civ. P.
41(b). By the same token, Federal Rule of Civil Procedure 37(b)(2)(A) provides that a court may
“issue further just orders” after a party “fails to obey an order to provide or permit discovery[.]”
Those “further just orders” include, among other things, “dismissing the action or proceeding in
whole or in part[.]” Fed. R. Civ. P. 37(b)(2)(A)(v).
As the Tenth Circuit has explained, “[t]he sanction of dismissal with prejudice for failure
to prosecute is a ‘severe sanction,’ a measure of last resort.” Ecclesiastes 9:10-11-12, Inc. v.
LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007) (citation omitted). The court has
nevertheless provided a “non-exhaustive list of factors that a district court must consider in
determining whether to dismiss an action with prejudice under Rule 41(b)[.]” Id. Those include:
“(1) the degree of actual prejudice to the other party; (2) the amount of interference with the
judicial process; (3) the litigant’s culpability; (4) whether the court warned the party in advance
that dismissal would be a likely sanction for noncompliance; and (5) the efficacy of lesser
sanctions.” Id. at 1143–44 (citing Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)).
For almost six months plaintiff has stonewalled defendant’s attempts to complete
numerous routine aspects of the discovery process. In particular, Ms. Rix has failed to object or
otherwise timely respond to UCHA’s interrogatories and requests despite my prior order
directing her to do exactly that no later than March 17, 2017. ECF No. 41 at 2. What’s more, in
that order, as well as another prior order I issued on January 6, 2017 regarding plaintiff’s failure
to make disclosures as required under Rule 26(a)(1), I warned plaintiff that her obstinacy in this
case could very well result in dismissal of her claims. ECF Nos. 31, 41. My warnings, however,
went unheeded as plaintiff has still failed to comply with that order. Thus, while dismissal of an
action is undoubtedly a “severe” course of action, I believe the circumstances warrant such a
In order to dismiss plaintiff’s case under Rule 41(b), circuit precedent dictates that I
consider the non-exhaustive list of factors spelled out in cases such as Ehrenhaus. See 965 F.2d
at 921 (“These factors do not constitute a rigid test; rather, they represent criteria for the district
court to consider prior to imposing dismissal as a sanction.”). To reiterate, these include: “(1)
the degree of actual prejudice to the other party; (2) the amount of interference with the judicial
process; (3) the litigant’s culpability; (4) whether the court warned the party in advance that
dismissal would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.”
Ecclesiastes, 497 F.3d at 1143–44. For the reasons below, I find that all five identified factors
weigh in favor of dismissal.
First is the issue of prejudice. As UCHA persuasively argues, it “has been unable to
complete discovery efficiently and effectively as a result of [p]laintiff’s conduct.” ECF No. 44 at
7–8. In particular, it “was unable to complete [p]laintiff’s deposition” and has “incurred
unnecessary attorney’s fees in an effort to elicit [p]laintiff’s responses to Interrogatories and
Requests.” Id. at 8; Dep. of Sherry F. Rix, ECF No. 44-2 at 230:7–25 (holding plaintiff’s
deposition open given her failure to respond to defendant’s interrogatories and requests). I am
familiar with plaintiff’s pattern of conduct regarding responses to discovery in this case, see ECF
Nos. 31, 41, and I agree with defendant that it has been prejudiced by plaintiff’s actions during
discovery. 2 Thus, I find that the first factor weighs in favor of dismissal. See Jones, 996 F.2d at
264 (“Plaintiffs have prejudiced the Defendants by causing delay and mounting attorney’s fees.”)
Second, I find that plaintiff’s interference with the judicial process has been substantial.
As the record in this case reveals, plaintiff has failed to comply with this Court’s orders on
numerous occasions and has disregarded the Federal Rules of Civil Procedure in prosecuting her
case. ECF Nos. 31, 41; see, e.g., McNamara v. Brauchler, 570 F. App’x 741, 743 (10th Cir.
2014) (unpublished) (“[Plaintiff’s] submission of an amended complaint in violation of the
applicable procedural and court rules and the magistrate judge’s direct orders interfered with the
judicial process.”). This has continued despite the Court’s efforts to explain the discovery
process and Ms. Rix’s obligations. The second factor therefore tips in defendant’s favor as well.
Third, as a pro se plaintiff, no one is to blame for plaintiff’s conduct other than herself. 3
See Jones v. Thompson, 996 F.2d 261, 266 (10th Cir. 1993) (“The record clearly shows the
Plaintiffs flouted numerous court orders, failed to prosecute their case, and abused the discovery
Defendant’s subsequent filing of a motion for summary judgment on March 31, 2017 could, at first
blush, reveal a lack of prejudice. See ECF No. 48. However, it appears that defendant filed that motion
because it wanted to comply with the Court’s March 31, 2017 amended deadline for dispositive motions.
See ECF No. 39. In any event, one need not speculate that defendant’s ability to file such a motion has
been unduly hampered by plaintiff’s actions during discovery and therefore that defendant has been
prejudiced in this case. In my opinion, then, it would unfair to find that defendant has not been prejudiced
purely because it has filed a motion for summary judgment in this case. Similarly, it would be unfair to
address the merits of defendant’s motion for summary judgment without first deciding its motion to
A volunteer lawyer was appointed by the Court to represent plaintiff but declined the appointment after
plaintiff accused him of conspiring with defendant after he communicated with defense counsel. ECF
Nos. 29, 32. Plaintiff has nevertheless received help from her “friend” Mr. Dannell McNeil, Sr. Mr.
McNeil, however, is not a lawyer. He has, nonetheless, come dangerously close to acting like one at
times during this case.
process. That the Plaintiffs did not have benefit of counsel at various times was a problem of
their own making.”) (emphasis added).
Fourth, as mentioned above, plaintiff has received numerous warnings that her actions
may result in the dismissal of her case. See ECF Nos. 31, 41. In particular, the Court warned
plaintiff on March 3, 2017 that failure to subsequently object or respond to defendant’s
interrogatories and requests by March 17, 2017 (which plaintiff did not do) could result in
“dismissal of your case for failure to prosecute it properly.” ECF No. 41 at 2; see also ECF No.
31 (“Plaintiff must make disclosures required by Rule 26(a)(1). Mentioning some of plaintiff’s
‘evidence’ at the scheduling conference does not satisfy the disclosure obligation. Failure to
comply could result in dismissal of the case without prejudice for failure to prosecute.”). This
sanction should therefore come as no surprise.
Finally, I find that a “lesser” sanction would not be enough here. Providing no good
reason for her continued failure to object or respond to defendant’s interrogatories and requests,
plaintiff has, simply put, disregarded the Court’s March 3, 2017 order. If that one instance were
plaintiff’s only problem, I would consider a lesser sanction. Unfortunately, however, plaintiff
has routinely abused the litigation process in this case.
Indeed, plaintiff has stonewalled defendant at nearly every turn during the discovery
process and has filed numerous motions accusing defendant of fraud and other improper conduct
without any indication of a good faith basis. See, e.g., ECF No. 12; ECF Nos. 31 (“[P]laintiff
has provided no basis to suspect that defendant’s lawyers have engaged in any inappropriate
conduct and cautions plaintiff that unfounded accusations against defense counsel could result in
sanctions in the future. The plaintiff is advised to focus on the merits of her claims against the
defendant.”); ECF No. 33 (denying plaintiff’s “motion to the court to hold defense counsel
accountable” for alleged theft of plaintiff’s evidence and explaining that “[t]he court is aware of
no valid basis to connect defense counsel with any alleged theft of plaintiff’s evidence or any
alleged misconduct by the Aurora Police Department, nor is there any basis to order an
investigation of the police report to which she alludes” and that “plaintiff provided [no] basis to
restrict defense counsel’s right to conduct appropriate discovery”).
Dismissal, therefore, is appropriate. See Jones, 996 F.2d at 265–66 (“The Plaintiffs
repeatedly ignored court orders to submit themselves for depositions, to conclude discovery, and
to come prepared to pretrial conferences. With the threat of dismissal facing them, the Plaintiffs
still refused to pay attorney’s fees and expenses or to produce a pretrial order. The history of this
case fully supports the district court’s conclusion [of dismissal].”).
1. Defendant’s motion to dismiss, ECF No. 44, is GRANTED. This civil action and all
claims therein are dismissed with prejudice.
2. Defendant’s motion for summary judgment, ECF No. 48, is denied as MOOT.
3. As the prevailing party, defendant is awarded its reasonable costs pursuant to Fed. R.
Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
DATED this 1st day of June, 2017.
BY THE COURT:
R. Brooke Jackson
United States District Judge
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