Olvera v. Douglas County Jail et al
Filing
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ORDER. ORDERED that the Recommendation of Magistrate Judge 45 isACCEPTED. Plaintiff's claims are dismissed with prejudice. Defendants' Motion to Strike or, in the Alternative, Response to Plaintiff's Objection to the Magistrate' ;s Recommendation for Dismissal 49 is DENIED as moot. Within 14 days of the entry of this Order, defendants may have their costs by filing a Bill of Costs with the Clerk of the Court. This case is closed, by Judge Philip A. Brimmer on 5/24/18. (sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 16-cv-02419-PAB-KLM
FERNANDO ZAMORA OLVERA,
Plaintiff,
v.
DOUGLAS COUNTY DEPUTY SHERIFF OSN 1520 and
DOUGLAS COUNTY DEPUTY SHERIFF OSN 1304,
Defendants.
ORDER
This matter is before the Court on the Recommendation of United States
Magistrate Judge (the “Recommendation”) [Docket No. 45] filed on February 27, 2018
and defendants’ Motion to Strike or, in the Alternative, Response to Plaintiff’s Objection
to the Magistrate’s Recommendation for Dismissal [Docket No. 49]. The magistrate
judge recommends dismissal of all claims asserted against defendants as a sanction
for failing to respond to defendants’ motion to dismiss and failure to prosecute his
claims. Docket No. 45 at 3. Plaintiff filed a timely objection. Docket No. 47.
Defendants move to strike plaintiff’s objection because it is written in the Spanish
language. Docket No. 49 at 2. In light of plaintiff’s pro se status, the Court construes
his filings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
Plaintiff is an inmate currently incarcerated in Texas. Docket No. 41 at 2. He
was previously incarcerated at the Douglas County Jail in Colorado. Docket No. 17 at
4. While incarcerated at Douglas County Jail, on January 1, 2016, plaintiff was placed
in segregation by defendants, identified by plaintiff as guards numbered OSN 1520 and
OSN 1304. Id. at 6. Plaintiff claims that the walls of the cell were covered in dried spit
and the toilet was clogged. Id. at 9. Plaintiff states that he was again placed in
segregation by defendants on March 23, 2016, and that his cell walls were covered in
human feces that caused him to vomit. Id. at 10.
On September 26, 2016, plaintiff filed his complaint. Docket No. 1. Plaintiff
brings two claims for cruel and unusual punishment in violation of the Eighth
Amendment. Docket No. 17 at 9-10; see also Docket No. 20. On May 9, 2017,
defendants filed a motion to dismiss. Docket No. 28. After plaintiff did not respond by
the default deadline, see D.C.COLO.LCivR 7.1(d) (“21 days”), the magistrate judge
ordered plaintiff to respond by September 15, 2017. Docket No. 34. Plaintiff did not do
so, instead filing a motion for appointment of counsel. Docket No. 35. The magistrate
judge granted plaintiff’s motion for appointment of counsel and extended plaintiff’s
deadline to respond to the motion to dismiss until December 20, 2017. Docket No. 37.
The magistrate judge’s order reminded plaintiff of his continuing obligations pending pro
bono counsel accepting his case:
The pro se litigant is advised that there is no guarantee that [Civil Pro
Bono] Panel members will undertake representation in every case
selected for pro bono representation. The pro se litigant is further
cautioned that, until appointed counsel enters an appearance, the
litigant is responsible for all scheduled matters, including hearings,
depositions, motions, and trial. It remains Plaintiff’s legal obligation to
comply with the Federal Rules of Civil Procedure, the Local Rules in this
District, and all orders of this Court. See Green v. Dorrell, 969 F.2d 915,
917 (10th Cir. 1992).
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Docket No. 37 at 2 (emphasis in original). The Clerk of the Court was unable to secure
representation for plaintiff through the civil pro bono program and, on December 12,
2017, plaintiff filed another motion for appointment of counsel. Docket No. 42. Plaintiff
did not respond to the motion to dismiss by the twice-extended deadline. On February
27, 2018, plaintiff still had not responded to the motion to dismiss and the magistrate
judge recommended dismissal. Docket No. 45.
The Court must “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is “proper” if
it is both timely and specific. United States v. One Parcel of Real Property Known as
2121 East 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). To be sufficiently specific, an
objection must “enable[] the district judge to focus attention on those issues—factual
and legal—that are at the heart of the parties’ dispute.” See id. at 1059 (quoting
Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a proper objection, the
Court may review a magistrate judge’s recommendation under any standard it deems
appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also
Thomas, 474 U.S. at 150 (“[i]t does not appear that Cong ress intended to require
district court review of a magistrate’s factual or legal conclusions, under a de novo or
any other standard, when neither party objects to those findings”).
Although plaintiff filed a timely objection to the Recommendation, he does not
address the basis for the Recommendation. See Docket No. 47. In particular, plaintiff
does not address the substance of defendants’ motion to dismiss or his failure to
respond to the motion to dismiss. Rather, plaintiff alleges a variety of discriminatory
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conduct by Douglas County Jail corrections officers that does not form the basis for his
claims in this lawsuit, id. at 2-5, and discusses loss of commissary funds and poor
medical treatment that formed the basis of claims previously dismissed as frivolous. Id.
at 5-7; see also Docket No. 20 at 4-5. Because plaintiff does not specifically object to
the magistrate judge’s grounds for recommending that his claims be dismissed and his
general objection is insufficient to require the Court to conduct de novo review of the
Recommendation, the Court determines that de novo review is not required. Cf. One
Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d at 1060 (holding general
objections are insufficient to avoid waiver, but that the district court may conduct de
novo review in its discretion).
In this matter, the Court has reviewed the Recommendation to satisfy itself that
there is “no clear error on the face of the record.”1 Fed. R. Civ. P. 72(b), Advisory
Committee Notes. Plaintiff fails to explain why he never responded to the motion to
dismiss despite two lengthy extensions. Docket No. 47. The magistrate judge
reminded plaintiff of his obligations to comply with the Federal Rules and court orders
until counsel entered an appearance, but he did not do so. See Docket No. 37 at 2.
Dismissal with prejudice is warranted because of plaintiff’s repeated failures to comply
with court orders and deadlines. The Court finds no clear error with respect to
Magistrate Judge Mix’s recommendations and will adopt them. See Fed. R. Civ. P.
41(b); D.C.COLO.LCivR 41.1. The Court will therefore dismiss plaintiff’s claims.
1
This standard of review is something less than a “clearly erroneous or contrary
to law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo
review. Fed. R. Civ. P. 72(b).
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Because dismissal of plaintiff’s claims resolves this lawsuit, the Court will deny
defendants’ motion to strike as moot. See Docket No. 49.
For the foregoing reasons, it is
ORDERED that the Recommendation of Magistrate Judge [Docket No. 45] is
ACCEPTED. It is further
ORDERED that plaintiff’s claims are dismissed with prejudice. It is further
ORDERED that defendants’ Motion to Strike or, in the Alternative, Response to
Plaintiff’s Objection to the Magistrate’s Recommendation for Dismissal [Docket No. 49]
is DENIED as moot. It is further
ORDERED that, within 14 days of the entry of this Order, defendants may have
their costs by filing a Bill of Costs with the Clerk of the Court. It is further
ORDERED that this case is closed.
DATED May 24, 2018.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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